Section 109: Court Amendments of the Declaration & Description

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I appreciate that many of you might be feeling overwhelmed by all of the posts about COVID-19 lately. It is all we hear about and it is hard not to feel anxious about it sometimes. Today, we go back to normal. This post is about a recent court decision.

A recent case discusses when the court will order an amendment to the declaration or description under section 109 of the Condominium Act, 1998.  According to section 109 of the Act a condominium or an owner may make an application to the Superior Court of Justice for an order amending a declaration or description. The court may make an order where:

Grounds for order

(3) The court may make an order to amend the declaration or description if satisfied that the amendment is necessary or desirable to correct an error or inconsistency that appears in the declaration or description or that arises out of the carrying out of the intent and purpose of the declaration or description. 1998, c. 19, s. 109 (3).

The case contains a lot of discussion about other legal issues, like the circumstances when partial summary judgment should be used. Unless you are a lawyer or enjoy reading about legal issues, you can skip this part as it isn’t relevant to the condo issues.

The condo issues before the court were primarily about the legal characterization of four areas on the 15th floor in the condominium: the elevator landing; the interior hallway; a roof/balcony/terrace; and a stairwell. The owner argued that the areas should form part of the unit or be for his exclusive use. The condominium argued the areas should all form part of the common elements to be used by all of the owners.

After reviewing the plans, the judge determined that all of the areas were outside of the unit boundaries as depicted on the plans. The areas were also not depicted as exclusive use common elements for the owner of unit 15. According to the documents the areas were common elements that could be used by all owners.

However, the judge also found that there was never a wall installed between the elevator landing and unit 15. As such, the judge was satisfied that an amendment to the declaration and description was necessary or desirable to correct the inconsistency that appeared in the declaration or description and carry out the purposes of the declaration and description.

With respect to the roof/balcony/terrace, interior hallway, and stairwell, the judge was not persuaded that amendments were required.  The owner of unit 15 argued that the storage lockers in the stairwell ought to be exclusive use common elements. The judge said this was “absurd”. The stairwells are fire exits. While the lockers may have been used by unit 15 in the past, the judge opined that it was likely because the declarant owned and used units 14 and 15 for a period of time after registration of the condominium. The lockers were described as common elements and were needed for roof and equipment maintenance.

Interestingly, the judge stated that one of the reasons the areas were common elements was that the condominium could not maintain the building if the roof, interior hallway and stairwell areas were not common elements. While I appreciate it may have been more difficult, it seems like the condominium could access the areas whenever it needed to perform maintenance or repairs by giving notice under section 19 of the Act, and likely according to the Declaration.

The owner also claimed damages for trespass, nuisance and other tort claims. The judge dismissed the action against the owners because the areas were all common elements so the owners were entitled to use them. With respect to the allegation that board members entered his unit unlawfully, the judge was satisfied that the directors entered the unit to fulfill their duties and did so in accordance with the requirements of section 19 of the Act. There was no reason to think they were trespassers and the owner largely made uncorroborated allegations. The judge dismissed the claims against the directors.

The case  is 1229965 Ontario Inc. v. York Condominium Corp. No. 263. It is available on CanLii here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1639/2020onsc1639.pdf.