To kick off the new year, we’re reviewing the Condo Act in a series we’re calling “Back to Basics”. We’ll cover common topics and issues that often arise in condo living. So, follow along and we hope you’ll gain an appreciation of these foundational concepts.
In Part 1 of this series, we discuss a topic we’re frequently asked about – Section 98 of the Condo Act and owner alterations to common elements. Can owners alter the common elements, such as installing a decorative light outside their unit door or permanent bike rack in their parking space? How? Who pays for it?
For starters, owners aren’t allowed to change the corporation’s common elements without permission. Most condominium declarations include a strict requirement that owners obtain the board’s written approval to modify any common elements. Owners must also comply with Section 98 of the Condo Act.
Section 98 sets out the requirements to allow owners to alter common elements. Section 98 requires that: (1) the alterations be consistent with the declaration and the Condo Act, and (2) the board approves the alteration by resolution before changes are made. If these conditions are met, owners must enter into a written agreement with the corporation, which is commonly referred to as a “section 98 agreement” or “owner’s alteration agreement”. The agreement is registered on title to the unit that outlines the responsibility for repair, maintenance and insurance (among other items), and specifies who owns the alteration.
Boards are under no obligation to approve owner requests and have broad discretion in approving them. However, they must always act reasonably in the circumstances. Especially in cases where alterations pre-date the Condo Act or were permitted or accepted by prior boards without formalizing approval via an agreement at the time. Larger alterations may require notice to and approval of other owners while alterations to exclusive use common elements are permitted without owner approval but in the discretion of the condo board considering certain statutory factors.
The preparation and registration of the Section 98 agreement is typically paid by the owner requesting and changing the common elements, in addition to any other reasonable costs required by the board (e.g. the cost of an engineer to review proposed structural changes).
A Section 98 agreement can sometimes retroactively approve or regularize historical changes to the common elements approved by the past board(s) but never formalized into a registered agreement. The later registration of a Section 98 agreement would bring unit owners into compliance with the declaration and the Condo Act. In these circumstances, the corporation may require the owner sign the corporation’s form of section 98 agreement or require the removal of the alteration and restoration of the common elements to its prior condition, all at the owner’s expense or take enforcement action against the unit owner for non-compliance.
It’s better to ask permission first than to ask for forgiveness later!