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FIREPLACE FLUE WAR : judge SPLITS DECISION for Declaration amendments to download reconstruction 2019/08/16 23:01  
again NOT legal advice

Should a 1983 Declaration now be amended judicially under the (Ontario) Condominium Act 1998’s section 109, in order to "slope-shoulder" / rectify ? / revise duties & costs of FIREPLACE FLUE RECONSTRUCTION & MAINTENANCE ?

With fireplaces ordered shut & major restoration costs overdue for years, should a judge now "download" full duties & costs ( as common element flues ) from the general ownership, onto the upper floor units served unit-by-unit by the vertical venting flues at issue ?

The vents serve fireplaces on the four top floors of a Toronto central core residential condo. Four floors of unit buyers paid ( & their lenders relied on ) those - for almost 40 years - being common elements burdening the general ownership like any other exhaust drain or outlet.

Restoring them to safe operation, arguably will cost at least a half million dollars.

The Board has shut them down since 2013, triggering counter-demands for an oppression remedy !

The pair of amendments sought by the Board of the Wellington in Toronto's downtown core, would slope-shoulder, revise or rectify the duties & costs - depending on one's opinion - DOWNWARDS onto certain upperfloor condo owners of unit-dedicated condo fireplaces.

Within the judgment is the 1983 Declaration’s unit boundaries which DID NOT include the fireplace flues running to rooftops and venting each unit-dedicated fireplace.

Outside the unit boundary as shown, each dedicated flue was NOT shown as a unit component.

Further the Declaration expressly even imposed onto ALL owners / onto the condo Corporation itself as a general duty to maintain/reserve fund/ replace periodically, the burden to repair & maintain all common elements AND ( any ) exclusive use common elements ( of which the fireplace owners cite there are none anyway ).

But Ontario's Condominium Act 1998 allows a judicial amendment route. That's instead of Declaration changes by legislative change, owner consents, expropriation activity or Land Titles correction etc.

As seen at other Cafcor topics about applications for judicial changes, the current Act's judicial option is limited at section 109 (3 ):

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

So how much of the cost struggle is really about "error or inconsistency" allegedly within the 1983 Declaration ?

Mr Justice Sanfilppo :

- thinks the 24 vertical flues outside the unit bounds, should have been “exclusive use” appurtenances to respective fireplaced units, not a mere conventional venting or pipe outlet

- so agrees to update / amend the 1983 Declaration by converting the common element flues into Exclusive Use unit-dedicated appurtenances, from Common Element, and to add a Schedule F notifying the modern Ontario universe accordingly as since 2001

- but refuses to expressly judicially amend the Declaration by down-loading flue repair & maintenance duties & costs onto the units to which such WILL BE dedicated appurtenances under what he has approved.

What's this mean ?

INSTEAD BY A ( NON-JUDICIAL ) OWNER CONSENT PROCESS are there enough consenting non-fireplaced owners down below to instead now override any opposition from the topfloor owners with fireplaces ?

Amendment instead by owner consent under the Condo Act 1998's section 107 would appear here ( see 7(4) e ) to have to trigger a NINETY PER CENT 90 % owner consent process to download the duty & costs.

Tantalisingly, the 24 fireplaced upperfloor units literally are TWENTY PER CENT 20 % of the 120 unit total. Would it be sorta like a process to exempt lower floor folks from elevator refurbishment costs ? Or the blind from paying for artwork ?

More to come. Condo Boards need to seek & rely on competent legal professionals to get through complex stuff like this . . .

( PS Every home in my waterfront Building Scheme has at least one fireplace. Having heated 99 % by high-efficiency woodstove for 6 winters at our previous Building Scheme, I found "the wood experience" such that I haven't struck a match in our fabulous fireplace since 2010 ! City folks, respectfully, may be better served by tuning into the Fireplace Channel . . . But how much costs should general owners use the courts to download ? )

M.T.C.C. # 590 v Registered Owners 2019 ONSC 4484 issued July 25/19
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