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upheld : PATIO TRELLIS violated BOARD’S GATEKEEPING AUTHORITY – Kumer v MTCC # 775 2021/03/26 18:32  
Not legal advice, as usual

The Toronto Star's property law columnist lawyer BOB AARON - a frequent authority relied upon by the CBC - has shed light on a midtown Toronto condo patio dispute over a mere plastic trellis or screen. Offered worthwhile advice too.

It's a type of dispute played out thousands of times every year in America over U.S. flags, backyard sheds, outdoor art, religious icons, garden gnomes, , . . . etc.

This latest dispute at a midtown Toronto townhouse involved some sorta mere plastic trellis or screen placed or secured against the metal enclosure of a small patio with the status of 'exclusive use common area'.

The size or particulars are tantlizingly left unspecified : was it 10 feet high ? was it 10 inches high ?

Unit owners Mr & Mrs KUMER repeatedly refused condo Board demands to apply for permission to leave in place the trellis/screen. The Kumers would later argue ( through the course of arbitration & appeal to ONSC Ontario's Superior Court of Justice ) that placing such was a FULLY PROTECTED, legislatively-authorized, reasonable exercise of their property rights. ( As in :

Ontario's Condominium Act 1998 S.O. 1998 ch C.19 )

Use of common elements by owners

116 An owner may make reasonable use of the common elements subject to this Act, the declaration, the by-laws and the rules. 1998, c. 19, s. 116.

The Kumers also argued that technically the "placed" item was NOT "erected" & thus technically did not even trigger a condo Rule imposing prior submission & Board approval before "erection" of items on common elements. )

BUT ultimately the trellis/screen - whatever its particulars ignored by ONSC - got arbitrated & now judicially confirmed in violation by an ONSC judge.

It has been ordered removed with a partial arbitral award of $ 18 K also upheld against the owners.

To recap, with counsel the trellis owners again fail in arguments that :

- their plastic trellis/screen was literally NOT “erected” so not literally in by-lawed technical violation nor triggering any Board approval process, and

- that anyway the resultant usage was NOT more than “reasonable use” of the common elements legislated as of right under the Act's section 116.

There are arguably loose ends left in the judgment. Such arguably include that :

TOTALLY missing in action at ONSC : ONCA Ontario's Court of Appeal 2009 decision upholding a lower court ruling that the following unapproved item had not violated such gatekeeping authority at a different townhouse in the Hamilton area :

In a compact Hamilton condo townhouse backyard a non-approved 64 ft 3, ton and a half HOT TUB was held & upheld on appeal NOT a section 98 violation - Wentworth CC # 198 McMahon 2009 ONCA 870

Anyway, back to mid-town Toronto the undetailed trellis' current status is moot, ONSC having noted that the appellant Toronto owners have sold the unit for $ 2.95 M.

Regardless of the 2009 Hamilton outcome & expectations of individual property owners, maybe it's a stretch to make adjudicators comfortable with visible non-uniformity laid on common elements at the whim of an individual unit owner.

. . . . whether as in : "The flood-gates of Hell are threatening to open ! " "And it may slow maintenance / increase costs in an unspecified amount ! . . .

( note : there's ZERO said about whether the trellis can even be seen outside the unit. Nor how large it is. Nor whether management contractors cut patio grass within the patio . . trim weed growth . . . shovel snow . . . . whatever ? Exactly how does the trellis physically impede property operations - IF it even does ? Is the only genuine beef its mundane existence ?

Such sorta detail is germane to part of the decisive rationale, given the ambiguity confessed by the judge about whether a technical Rule is even literally being violated

Further, "reasonable use" arguably appears to have been treated subject to not merely specific prohibitions within the governance documents, but to efficiency of physical property management operations.

Arguably treated that the Board's gate-keeping deserves deference due to its general obligations being imposed by condo law & site-specific documents & underwritten by all owners.

All the more reason to buy into a different community model unless one wants to accept what an arbitrator or judge decides are the disputed burdens & benefits of that scenario. ( Or for that matter what use may sometimes be made of liens & charge-backs without a Section 98 agreement already in place . . . )

Kumer v. MTCC No. 775, 2021 ONSC 1181 issued Feb 16/21
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five uncertainties from KUMER v M.T.C.C. # 775 2021/03/28 15:14  
Not legal advice and all but one addressed by the trellis decision itself :

Question - Was the 'placed' trellis or screen whatever literally an ” erected” violation of Rule or other site-specific governance document ?

( The Kumer Judgment's ) Answer - “ . . . . [77] Although the Arbitrator did not expressly state that the appellants were in breach of the Act, the Declaration and the Rules, it is implied in his analysis and his conclusion.

The Arbitrator made no error in directing that the screens be removed and not be reinstalled without prior board approval.

The appellants were in breach of the Condominium Act, the Declaration and the Rules....” ( sic )

Q - Did the judge claim that common element ownership belongs to the condo corporation instead of – as legislated - to the condo owners unit-by-unit as “tenants in common” of the only genuine "ownership". Are Ontario condo owners merely "shareholders" not on common element land title ? ?

A - “ . . . . .[51] Section 11(2) of the Condominium Act provides that: “The owners are tenants in common of the common elements and an undivided interest in the common elements is appurtenant to each owner’s unit”.

This is not in dispute.

The common elements are owned and managed by the condominium corporation, a corporation of which the unit owners are shareholders. (sic )

“Thus, it is the owners and not the corporation who own the common elements”: Cheung v. York Region Condominium Corporation No. 759, 2017 ONCA 633, 139 O.R. (3d) 254 at para. 70. ...” ( )

( footnote : Ontario's Condominium Act 1998 fortunately & expressly gives Ontario condominium corporations the right to sue and be sued in the corporation's name. Not being technically the "owner" of the community, how else could Boards sue or be sued without such express power given representatively. It may be easier to see in my own Building Scheme community whose common lands are owned by owner A and owner B etc in a form of shared fee simple ownership called "tenancy in common". Thank goodness here the unincorporated POA has zero legal status nor free-standing ownership . )

Q - Can aesthetics somehow have - as quoted in attribution to the arbitrator - some sorta community “aroma” ?

A - “ . . . .[47] The Arbitrator considered that the MTCC had to consider the possibility of other requests from owners and the possibility of a wide assortment of patio- fence attachments which may result “not only in significant rise in common-area upkeep costs, but also a significant adverse effect on the aesthetic aroma of the Complex”.

Q - What is the judicial standard of review for a judge to apply in reviewing arbitral decisions ?

A - an interesting discussion in paras 20 to 34 ( pointing largest to "reasonableness' in this dispute relevantly not between sophisticated commercial adversaries with in-house legal counsel & bigshot offices ).

Q - As to this mid-town Toronto litigation, who actually was the ONSC Ontario Superior Court of Justice judge identified only as “Ramsay J." ? ?

A - lawyer Bob Aaron's article cites ( ONSC Central South – Niagara R.M. rostered 2007 appointee ) The Honourable James A. Ramsay but

Toronto Region ONSC roster includes 2020 appointee The Honourable Madame Justice Audrey P.C. Ramsay

Bottom line : interesting even if less intense than a bitter U.S. war over a tiny U.S. Stars & Stripes flag stuck into a front porch flowerpot . . .
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