ALTERATIONS TO THE COMMON ELEMENTS BY UNIT OWNERS

There are No Stupid QuestionsBarry R. ScottMay 15, 2012

Basic Rule

• Owners have no right to alter the Common Elements, including Exclusive Use Areas

• Prohibition includes the smallest changes

• Absolute prohibition the easiest regime to administer

Dealing with Basic Rule

• Dealing with existing alterations• Desire to permit small changes– mailbox– garden flowers

• Desire to permit larger changes– awnings– deck additions– fences

Old Act (pre 2001)

• Approval of Corporation was required

• Often not properly documented

• No required system of record keeping

• Corporation often stuck with responsibility

New Act – Section 98

• Approval required

• Agreement must be entered into and registered on the title to the Unit– good progress – creates a record for all– problem with existing changes – problem with minor changes

Approval

• See Sections 97 and 98 for specifics– Board may approve minor changes– should be an Owners approval of generic changes– should be an Owners specific approval of all

significant changes• section 97 difficult to apply (cost tests)• beware of Oppression remedy on major changes

Agreements

• Act says that there must be an Agreement

• Agreement must be registered on title

• Cost $250.00 plus, depending on complexity

Multiple Unit Agreements

• Generic changes

• Owner approved list of generic changes

• Binds all units whose owners choose to sign

• Individual approvals at time still required

Multiple Agreements Cont’d

• Not applicable to unique or complicated changes– structural changes– unique deck changes

Existing Changes – Old Act

• Changes made under old Act (pre 2001)

– Get Agreements signed and registered (even if Corporation has to bear the cost)

– Incorporate applicable terms of a Multiple Unit Agreement into an Amendment to the Declaration – no specific authority, but an arguable strategy

where appropriate

Existing Changes – New Act

• Best to obtain and register an Agreement - with the Unit Owner bearing the cost if possible

• An amendment to the Declaration is a last resort strategy – could be challenged but better than having no agreements