Because all backyards in the 180-unit condo corporation are considered exclusive-use common elements, the judge concluded that, given the nature of the deck, its installation constituted an “alteration, addition or improvement to the common elements” under s. 98 of the Condominium Act, 1999 requiring an agreement to, among other things, clarify the ownership of the deck, as well as responsibility for its maintenance and insurance.

“The deck is clearly an addition to the backyard,” the decision reads. “It is something that requires maintenance, changes the overall appearance of the backyard, and can also give rise to potential liability on the part of the condominium corporation. An s. 98 agreement is clearly required if the respondents intend to retain the deck.”

Conant, a senior partner in the Condominium Law Group with Shibley Righton LLP, tells AdvocateDaily.com that the dispute is quite common and usually boils down to unit owners not being familiar with the rules of condo living.

“Many people just don’t know what condos are, or don’t have it properly explained to them when they are buying a unit. They think it’s just like buying a house, where you can do whatever you want with your own property,” he says. “There are many advantages that come with living in a condo, but there are also certain obligations and restrictions.

“This decision reaffirms what we have been advising clients about s. 98 — you can’t alter the common elements, including the exclusive-use common elements, without the agreement of the board and compliance with the Condo Act and the condo corporation’s declaration, bylaws and rules.”

According to the decision, the condo’s property manager only discovered the deck, which covered almost half of the backyard, after its installation. The unit owner did not initially respond to the board’s request to enter into an s. 98 agreement, as contemplated by the Act and the condo corporation's declaration.

In court, the unit owner claimed he should not be forced into the agreement because the unsafe, muddy and slippery condition of the yard made the deck’s construction necessary.

While sympathizing with the owner’s position and acknowledging the usefulness of the deck, the judge noted that the condo corporation was not refusing to allow the installation to stay.

“Rather, it is merely requiring that a section 98 agreement be entered into to clarify the terms of maintenance, and to set out the respective liability in the case of injury. Not only is this a reasonable request, but it is required by the Act,” the judge found. “In my view, a section 98 agreement is necessary purely from the perspective of ongoing maintenance and potential liability.”

“The fundamental point is that alterations by owners to the common elements, including their exclusive-use common elements, occur at the discretion of the board,” Conant says.

Condo boards often take a firm stance on individual cases of alterations by insisting on compliance with the Act and their declaration in order to avoid disputes with other unit owners further down the road, he says.

“They don’t want to set a precedent by allowing one person to do something today when another request could come along in a few months or years,” says Conant, who was not involved in the matter and comments generally. “That’s an issue many corporations struggle with.”

Indeed, differential treatment to unit owners could leave a condo corporation exposed to claims of oppression, he adds.

In the Superior Court case, the owners argued the portability of the deck should weigh in their favour and claimed another unit owner in the same building had installed a similar structure but was not required to enter an s. 98 agreement. Instead, they alleged the request was made of them as a means of harassment. But the judge did not agree.

“Just because other tenants were able to circumvent the requirements of the Act and declaration does not mean the requirements have been waived,” wrote the judge. “No doubt, if there was clear evidence to indicate that the applicant was seeking enforcement purely as a means to harass the respondents, a court would not likely assist in the request. However, in this case, it is clear that a section 98 agreement is required and the request is more than justified in the circumstances. I do not accept the respondents’ position that the request has been made by the board purely to harass them.”

Conant says, ""Owners have to remember that they do not have an unfettered right to make alterations. So while their home is still their castle, they may not be absolute king of it.""