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In hot water over hot tubs – condos.ca will share the info

Dec 17, 2014

We’ve been keeping a close eye on what’s happening in Canadian condo law. There’s been a lot of legal activity surrounding Toronto condos over the last few years which is no surprise given the surge in new condo developments. Some of the most high profile cases include a series of major class action lawsuits against condo developers led by Toronto lawyer Ted Charney.

Everything from developers limiting their liability on building defects to corruption in the administration of maintenance fees have hit the headlines. It’s made us think back to a 2009 case that’s important for Toronto condo owners to be aware of – the heated battle over the hot tub as reported on again recently by The Toronto Star.

In Hot Water over Hot Tub

If you’re an owner of a condo in Toronto or a potential buyer interested in condos for sale in Toronto, you’re no doubt aware of the tight restrictions on what you can and can’t install on your balcony or outdoor space. One homeowner ended up in court after installing a hot tub, sued by his condo townhome corporation. But the move backfired.

Hot tubs are almost always banned but in the Wentworth Condominium Corporation No. 198 v. McMahon suit, the courts agreed that the homeowner did not need permission by the condo board to install a hot tub in his exclusive-use area of a common element yard in his townhouse.

Precedence has Been Set

This ruling was huge new. Why? Because it opened the door for condo owners to argue for their rights to alter anything that is not considered a common element without board permission, providing of course that it does not pose health and safety concerns.


And we’re seeing it happen more and more. This recent sale of a stunning unit at 66 Portland by our sister company MrLOFT had an approved hot tub on its balcony.

Now this doesn’t mean you can go ahead and install a hot tub on condo balconies – rules outlined by your condo corporation in contracts are legally binding until ruled otherwise. Not to mention common sense when it comes to things like structural support – remember that the McMahon case was a ground floor townhouse.

What it does mean is that if you want to make an alteration to a non-common element and are facing roadblocks, you may have precedent on your side. That said, no one wants to spend time and money in court so it’s always best to speak with your condo board first before making any alterations. Then, if necessary, hire a lawyer to lead out-of-court negotiations before things escalate.

Toronto lawyer Mark Youngman who specializes in real estate law advises his clients to seek legal advice early on.

“It is always better practise to spend likely a few hundred dollars retaining a lawyer to review a matter before hand and get some good reasoned legal advice after having the opportunity to review the facts and the legal precedents, rather than taking steps without proper advice ahead of time and finding yourself in court, in a heated battle that can cost thousands if not tens of thousands of dollars.”

What We’ve Learned from the Changing Landscape of Condo Law

We’re taking away two key points for owners of condos in Toronto. Firstly, you have more rights than you think. Choose your battles wisely and know how far you’re willing to take the fight but do know that a “no” from your condo board is not necessarily the last word.

Secondly, battling it out with the boards or worse, developers, may feel like David versus Goliath. But if the outcome impacts other people, it may be worth teaming up in a class action lawsuit. Suits of this size are extremely time consuming – they typically take years in the system and you may have moved out of your building by then. Plus, they may cost you money upfront. So make sure it’s an issue worth fighting for.

We doubt if the aforementioned hot tub owner would’ve escalated the issue to the Ontario courts himself – his condo corporation sued him – but there are issues worth fighting for. As Charney told the Toronto Star, it’s about “behaviour modification”. Somebody has to hold developers and corporations responsible in order to drive positive change in a City with more condo dwellers than ever before.

We’ll continue to watch and report on what’s happening in the courts as it pertains to condos in Toronto. We’re hoping that all of this activity ultimately translates to buyer empowerment and more rights for condo owners.

Posted from condos.ca

Guest Contributor

Mark Youngman is a Toronto lawyer specializing in real estate law who acts for purchasers, vendors and mortgagees for residential and commercial real estate transactions. He became senior counsel in 2008. Mark is a member of the Canadian Bar Association. He is also a member of NARCA (National Association of Retail Collection Attorneys), an international organization for collection lawyers and is a real estate law representative on the Tarion Consumer Advisory Council.