Who can apply for a minor variance for the common elements? Condo or owner?

stencil.default (34)Recently there was an interesting decision released involving a parking dispute between a condominium and a unit owner. This isn’t surprising given that parking is a common problem in condominiums. The interesting part is that the decision was made by the Ontario Municipal Board (OMB) and answered the question: can an owner make an application for a minor variance from a zoning by-law for common element parking spaces? (Spoiler alert – the answer is likely no). 

The City of Brampton’s Committee of Adjustment granted a unit owner’s application for a variance from parking standards in the zoning by-law. The by-law required the unit owner to provide a minimum of 92 parking spaces in order to use the two units that it owned as a place of worship. There were 82 parking spaces in the condominium. The committee of adjustments authorized the variance.

The condominium’s board appealed the decision on the basis that the unit owner did not have the authority to apply for the variance because it only had the exclusive use of 6 of the 82 common element parking spaces.

The condominium’s board argued that the unit owner was not the owner of the common elements, but an owner in common with the owners of the other 17 units. The board argued that it had the exclusive authority over the common elements according to the Condominium Act, 1998, and the declaration. The condominium’s board did not have a concern with the use of the units as a place of worship, but they wanted to follow the process set out in the Act and seek input from the other unit owners.

The City argued that the condominium’s board was seeking to be exempt from planning law and that any unit owner should be eligible to make an application for a variance under the Planning Act. 

The unit owner argued that the declaration allowed any unit owner to use the common element parking spaces and that they were not seeking to change the common elements in any way.

The OMB decided that although the Condominium Act, 1998, establishes the exclusive authority of the condominium’s board to manage the common elements, the Act was not fully determinative of the legal issues raised. The definition of “owner” in the Planning Act allows the owner of any land, building or structure to apply for a variance, but the chair found that he could not “ignore the ownership structure of the condominium”. Furthermore, there was no legal right granted to the unit owner within the declaration to alter the use of or change the common elements. Finally, “as there is the potential for impacts on the common elements of the condominium” the unit owner required the written authorization of the board before proceeding with the variance application. In the alternative, the condominium’s board could make the application for the variance.

For these reasons, the appeal was allowed and the variance was not authorized.

The full case can be found here: https://www.canlii.org/en/on/onomb/doc/2017/2017canlii61576/2017canlii61576.html?resultIndex=2.