Court File and Parties

Court File No.: CV-25-90182 Date: 2026-03-10 Ontario Superior Court of Justice

B E T W E E N:

WENTWORTH CONDOMINUM CORPORATION NO. 21 Applicant

K. Mitchell, for the Applicant

- and -

MARC ROBERTSON and KIM ROBERTSON Respondents

S. Pulver and J. Bartlett, for the Respondents

Heard: March 4, 2026

Reasons for Ruling on Application

A.J. GOODMAN J.:

[1] The focus of the Application concerns a concrete pad ("the Pad") in the rear yard of a condominium unit. The question is whether the Pad ought to be removed at the Unit holder's expense because it was allegedly installed or maintained in breach of the Condominium Act, 1998, S.O. 1998, c-19 (the "Act").

[2] The applicant, Wentworth Condominium Corporation No. 21 ("the Corporation") seeks an order for the removal of the pad by the respondents, or alternatively, an order authorizing the applicant to effect the removal and remediation. In the alternative, the applicant seeks an order for the respondents to enter into a s. 98 agreement as detailed in the Act. (Appendix "A").

[3] The respondents, Marc Robertson ("Marc") and Kim Robertson are individuals, who have owned the subject Unit in the Corporation since August 21, 2015. The municipal address is Unit 29, 100 St. Andrew's Court, Hamilton.

Background:

[4] The Corporation is a residential condominium complex containing 137 townhouse style residential dwelling units located in Hamilton, which is run through its Board of Directors (the "Board").

[5] The Unit contains a common element rear yard that is designated by the Corporation's Declaration to be exclusively used by the owner of the Unit, the respondents. The exclusive use common elements rear yard contains a concrete patio or Pad, which was installed by one of the respondents' predecessors in title, allegedly without any notice and approval of the Board.

[6] It is not disputed that the installation of the Pad constitutes an addition, alteration or improvement within the meaning of s. 98 of the Act.

[7] The respondents initially purchased an unrelated unit in the Corporation in 1981. Marc was elected to the Corporation's Board in the Fall of 1999 and remained in this position for eight years.

[8] The respondents went on to sell their first unit and on or about August 21, 2015, subsequently purchased the Unit that is subject of this litigation.

[9] When the respondents purchased the Unit, they were aware that there was a large concrete pad in the backyard. The pad is approximately 19' by 10', and 11" thick. The Pad was in good condition when the respondents purchased the Unit, and remains in good condition. The purpose of the Pad is to protect the Unit, basement walls and the integrity of the yard.

[10] The respondents' yard is in the townhouse row, where the main level is the walk-out to the backyard before the ground drops. The respondents' neighbour's yard is below grade and the Pad has maintained the strength of the yard. There is also a patio located in the rear yard.

[11] Prior to closing, the respondents were not advised by anyone on behalf of the Corporation that the Pad was a breach of the Act, or that it needed to be removed. Nor were the respondents advised that any type of agreement relating to the Pad needed to be registered on title to the Unit.

[12] On August 19, 2024, and prior to the commencement of this litigation, Marc wrote to property management to clarify his position and to request that they reconsider their request to remove the Pad. Marc noted in his letter that:

a) The Pad was installed in the 1980s, over 40 years ago;

b) The Pad had been viewed annually by the Board and property management for over 40 years without any concerns;

c) He had been present for at least seven (7) annual "walk abouts" while acting as a member of the Board, from the year 2000 to 2006; and

d) He was a Board member, and as such his property would have been viewed "over a thousand times without any concern over the 40 years, based on weekly reviews".

[13] In his correspondence with property management, Marc enclosed a photo from the early 1980s, which depicted the Pad's existence at that time. Three unit owners who owned units in the 1980's, confirmed, in writing, the existence of the Pad at that time. A series of photographs were entered into evidence as Exhibit 1.

[14] The Corporations's principal affiant and Board representative, Ms. Susan Apro, ("Apro") confirmed that she would have been an owner at the time that the picture was taken as she has been an owner at the Corporation since 1976. Apro has also been a Board member for approximately 40 years.

[15] On August 30, 2024, Marc replied to the Corporation via e-mail stating that he objected to the removal of the Pad.

Positions of the Parties:

[16] Prior to purchasing the Unit, the applicant says that the respondents were aware: a) of the presence of the Pad; b) that no s. 98 agreement had been registered on the title of the Unit; c) that modifications to the common elements required consent from the Corporation, through its Board; and d) of the provisions of the Condominium Act, the Corporation's declaration, bylaws, and rules.

[17] The Corporation submits that the respondents are in breach of s. 98 and s. 119(1) because: The Pad constitutes an addition alternation, or improvement, a fact which is not disputed by the Respondents; and the requirements under s. 98, which stipulates approval by the Board, by resolution, an agreement between the respondents and the applicant, which allocates the costs, sets out respective duties in relation to things such as repair, damage, and insurance; and addresses certain matters required to be addressed under regulations made pursuant to the Act.

[18] Further, the applicant says that Marc was aware, or ought to have been aware (through serving on the Board during the period from 1999 -- 2007), that the blanket s. 98 agreement, effective August 11, 2004, did not permit concrete decks and therefore did not authorise the Pad.

[19] The Corporation says that it first discovered, on or about December 8, 2023, that a significant portion of the exclusive use common element rear yard of the Unit was taken up by the Pad, after it was disclosed by a different unit owner as a result of separate litigation.

[20] Subsequently, the Corporation, through its property manager wrote to the respondents on June 19, 2024, and again on July 18, 2024, requesting that they remove the Pad because it had been installed without the knowledge and/or approval of the Corporation, nor was there a s. 98 agreement in place.

[21] The respondents acknowledge that while it is trite law that a condominium board is entitled to enforce its governing documents, this is a unique and unprecedented case where the Corporation sat on these rights for well over 40 years. Rather than accepting that the Corporation knew of the common element change at the time that it was made, the Board is now trying to argue before this Court that they only recently found out about the change and that it needs to be removed, in case the Corporation must access the utility lines on an emergency basis.

[22] The Corporation has not provided any evidence that this has happened, or the likelihood that it will happen. The respondents submit that this reasoning is not credible and the Corporation is not coming to court with clean hands.

[23] Unlike the preponderance of cases cited by the parties, the respondents assert that they are advancing a somewhat novel argument, as the related precedents concerning laches and the existence of a waiver in a condominium declaration do not take into count any of the particular factual considerations arising in this case. This is a situation where the applicant should either be estopped from enforcing the Declaration based on the passage of time and its acquiescence to the common element change or be forced to enter into a s. 98 agreement so as to not require the removal of the Pad in question at the respondent's expense.

Issues:

i. Is the applicant precluded or estopped from requiring the respondents' compliance with the demand to restore the Pad, a common element, by laches, acquiescence or other equitable relief?

ii. Should the court exercise its discretion to order removal of the Pad or for the parties to enter into a s. 98 agreement?

Legal Principles:

[24] While pleaded by the respondents, during the course of submissions, both parties conceded that the prevailing jurisprudence provides that the Limitations Act, 2002, S.O. 2002, c.24, Schedule "B", applies in this case with the Corporation's reliance on its enabling statute.

[25] Indeed, where an applicant commences an application to enforce compliance with s. 98 of the Act, as opposed to internal governance documents, the Limitation Act, 2002 can have no application: see Waterloo North Condominium Corp v. Silacshi, 2012 ONSC 5403, at para. 16.

[26] Section 98 of the Act allows an owner to make an addition, alteration or improvement to the common elements, provided it is not contrary to the Act or the declaration and, among other things, is approved by the board. A deck has been held to be an addition within the meaning of section 98.19 An addition has been defined as something which "builds on or supplements what is already there".

[27] Section 98 is worded positively in that it confers on owners the right to make changes to the common elements, provided the conditions set forth in the section are satisfied, and an agreement with the condominium corporation is registered against the title to the unit. The converse is that an owner who makes such changes without satisfying the conditions breaches the section. In other words, an owner who caused changes to be made without satisfying the conditions outlined in s. 98 was held to be in breach of the Act.

[28] Moreover, in circumstances where a condominium corporation failed to exercise diligence in enforcing compliance with the provisions of the Act, a waiver provision in the declaration meant that the respondents were not relieved of their obligation to comply with the Act and the corporation's governance documents: see Toronto Common Element Condominium Corporation No. 1508 v. William Stasyna, 2012 ONSC 1504, at para. 45.

[29] The waiver provision in the Corporation's Declaration, namely section XII (4), states:

Waiver:

The failure to take action to enforce any provision contained in the Act, this declaration, the by-laws, or any other rules and regulations of the corporation, irrespective of the number of violations or breaches which may occur, shall not constitute a waiver of the right to do so thereafter, nor be deemed to abrogate or waive any such provision.

[30] Condominium boards have both the obligation and the right to manage common elements including what is placed thereon and the power to manage is not fettered by the statute. In MTCC No. 985 v. Vanduzer, 2010 ONSC 900, at para. 25, Low J. held that:

Under the predecessor legislation, there was no right given to unit owners to make alternation, additions or improvements to common elements. The Act loosened the prohibition by allowing them on the conditions set forth in s.98 of the Act. Under the Act there is still no right vested in an owner of a unit to make alterations, additions or improvements to common elements. There is merely a statutory mechanism whereby an owner may acquire permission to do so from the condominium corporation through compliance with the requirements in s.98 and at the discretion of the condominium corporation.

[31] I observe that the line of authorities, including Vanduzer and Stasyna, stand for the proposition that the statutory discretion of the Board must be shown deference by the court because to decide otherwise would undermine the rights of the other owners who are entitled to demand that the Corporation insist upon compliance from recalcitrant owners.

[32] There is no dispute that the Corporation has a statutory duty to manage the common elements. Section 26 of the Act reads: "For the purposes of determining liability resulting from breach of the duties of an occupier of land, the corporation shall be deemed to be the occupier of the common elements and the owners shall be deemed not to be occupiers of the common elements."

Analysis - Laches:

[33] The applicant denies that it had knowledge, whether actual or constructive, of the existence of the Pad, its installation and/or any request for approval having been made with respect to the Pad.

[34] Even if the Corporation's Board, having the requisite knowledge, failed to act promptly in enforcing compliance with s. 98 vis-a-vis the Pad, which is expressly denied, the waiver provision in the Declaration stipulates that the failure to take action to enforce any provision of the Act, declaration, bylaws or rules, irrespective of the number of violations or breaches which may occur, shall not constitute a waiver of the right to do so thereafter. Nor can it be deemed to abrogate or waive any such provision. The applicant reminds me that, as confirmed in Silacshi and Stasyna, it seems that the Corporation is entitled at any time to enforce compliance with the Act itself, even if it failed to do so for some period of time.

[35] The applicant says that it discovered the existence of the Pad in December 2024 and requested its removal in June 2024. As such, there is no delay that constitutes acquiescence or that renders this application unreasonable.

[36] The respondents contend that the delay by the Corporation was one of approximately 40 years. Even if the delay is one of 40 years, which is not admitted by the Corporation, the applicant argues that, in similar vein to the limitation argument, the Declaration of the Corporation provides a complete answer. That paragraph stipulates that the failure to take action to enforce any provision of the Act, declaration, bylaws or rules, irrespective of the number of violations or breaches which may occur, shall not constitute a waiver of the right to do so thereafter, nor can it be deemed to abrogate or waive any such provision. Accordingly, the doctrine of laches does not apply.

[37] As mentioned, the respondents' position is that the Corporation is estopped from requiring compliance with s. 98 of the Act, due to the equitable principle of the doctrine of laches.

[38] In M.(K.) v. M.(H.), 1992 CanLII 31, the Supreme Court held as follows:

... the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine.

[39] It is true that the mere passage of time or delay does not give rise to the equitable doctrine of laches which would estop the Corporation from pursuing the compliance orders. Rather, the doctrine considers whether the applicant's delay constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable remedy.

[40] The Supreme Court held that knowledge of one's claim is to be measured by an objective standard; the question is whether it is reasonable for a plaintiff to be ignorant of her legal rights given her knowledge of the underlying facts relevant to a possible legal claim.

[41] The difference between an inquiry under the common law discoverability doctrine and an inquiry under the doctrine of laches is that with the latter doctrine, there is a residual inquiry: in light of the plaintiff's knowledge, can it be reasonably inferred that the plaintiff has acquiesced in the defendant's conduct? The court held that the answer to that question depends on the circumstances of each case.

Discovery of the Pad by the Corporation:

[42] I understand that, by way of context, in 2023, the Corporation previously brought litigation against another unit owner with respect to a concrete pad they had installed in their exclusive use, common element property (the "Correlated Application"). This other owner purportedly brought up the Pad in the respondents' backyard in the course of the Correlated Application.

[43] At para. 36 of the affidavit sworn by Apro on May 2, 2025, she stated that she was "not personally aware of the existence of the subject installation until learning about it from the responding affidavit provided by the Correlated Owners."

[44] The claim that Apro (or anyone else associated with the Corporation for that matter) had not been aware of the Pad in the subject Unit until the Correlated Application in 2024 was raised, defies logic and common sense.

[45] I accept that Marc had walked throughout his and the remainder of the common areas of the Corporation's property with Apro and colleagues on at least seven occasions, over many years. At the same time, the Property Managers at the time, Randy Bailey and then Stan Dulberg, took a detailed review of each unit and the related common elements. From the evidence adduced at this hearing, it seems to me that at all times, the Pad in the respondents' Unit would have been clear and obvious to anyone looking at the Unit, including Apro.

[46] On cross-examination, Apro was asked about a photograph contained in Marc's affidavit which depicted the Pad and the backyard area. Apro's contention was that she noticed the backstairs of the Unit, but not the Pad to which the stairs are affixed. I agree with the respondents that Apro's evidence is not credible and it makes no sense that she would notice the stairs, the patio stones, but not the Pad, which is attached to the stairs, on at least one occasion over the course of her lengthy tenure as a Board member, with the mandated inspections.

[47] From my review of the evidence, the yards to the townhouses in the respondents' row are very open and easily viewed; they have never been closed in by fences or otherwise. Members of the Board would have walked this route, apparently during the first weekend of May each year, as part of the annual walk-around with management. Again, Marc took part in this walk-around, along with Apro, between 2000 and 2006 when they both members of the Board.

[48] Even with the placement of outdoor furniture, I am satisfied that the respondents have never attempted to conceal the Pad or otherwise hide its existence since purchasing the Unit in 2015. I accept that for the past nine years, the respondents had no issues, and nobody from the Board or property management expressed any issues with them, until the issue was raised in 2024.

[49] In para. 32 of her affidavit, Apro stated that based on her discussions with the property manager, it was her belief that the Unit file held by management contained no evidence that the installation of the Pad had been brought to the attention of the Corporation. Yet, in rejoinder, the respondents are aware of the timing of the management change as they have reviewed a neighbour's letter from Lounsbury, dated July 4, 1996, pursuant to which Lounsbury approved alterations to a neighbour's backyard. There is neither cogent evidence that the Pad had to be repaired or otherwise remediated nor caused any lack of enjoyment or interfered with other unit owners during this interval.

The Doctrine of Laches in Condominium Law:

[50] It is true that the doctrine of laches has been argued unsuccessfully in other condominium law cases in Ontario. However, it is the respondents' position that the case at bar is distinguishable on the facts and that the related caselaw should not be followed in these circumstances.

[51] I agree that this case is unique and distinguishable in the sense that the respondents resided in the community before purchasing the Unit, and one of the respondents was on the Board. As mentioned, Marc performed a number of walk-through's with the other Board members over the years, including Apro, during which there was no mention of the Pad being in breach of the Act. This is even prior to the time when Marc owned and resided in the Unit.

[52] The applicant has taken the position that the respondents knew, or ought to have known, that the Pad was in breach of s. 98, and that they took no action to remedy the situation. I disagree. At no time were the respondents aware that the Pad was in breach of s. 98. The record is clear that the Pad was installed on the Property almost 40 years ago. The respondents were not involved in the approval and/or process regarding its installation.

[53] The respondents submit that in light of the Corporation's Board's regular walk throughs of the Unit and the Corporation's property, it was reasonable for them to have inferred that the Corporation had no issue with the Pad. If it was a breach of the Act, which the respondents were not aware of at the time they purchased the Unit, I find that the Corporation had expressed its acquiescence by failing to address the breach in the years before the respondents purchased the Unit.

[54] For example, I am able to distinguish the facts in Stasyna at para. 40:

There are other unique features to this case. There were many claims of non-compliance against other owners of parcels as well as these owners. Discoverability is not the issue here. The non-compliant state of the common elements lands had been known for a long time. The owners of the affected parcels had been on notice for a long time and the Corporation never abandoned its position that these owners were non-compliant -- instead it initially sought to use less forceful means to achieve compliance. (emphasis added).

[55] The Corporation made no representations over the years, and demonstrated though its conduct that there was no issue or violation with the Pad. While I am keenly aware of the prevailing jurisprudence, on the facts of this specific case only, I find that the respondents relied on the omissions, representations, or, more importantly, the Corporation's acquiescence both temporally before and after they had purchased the Unit. Clearly, no status certificate was issued.

[56] Indeed I was not presented with any other case wherein the doctrine of laches had demonstrated this level of Corporation knowledge of the issue, its acquiescence and its correlative reliance by the unit owner.

[57] I accept that the respondents would suffer detriment if the enforcement were now permitted and they were required to remove the Pad entirely. As a result of the foregoing, I agree with the respondents that this is an appropriate case to apply the equitable doctrine of laches and estoppel as against the applicant from seeking the specific relief sought.

Doctrine of Good Faith:

[58] For the sake of completeness, I next turn to the issue of good faith. It is the respondents' position that the Corporation's directors have failed to execute their duties honestly or in good faith in breach of s. 37 of the Act.

[59] The applicant submits that the fact that the Corporation took enforcement action against another unit owner is demonstrative that the Corporation is acting in good faith and not selectively enforcing compliance.

[60] It bears repeating that the applicant has argued that it did not have knowledge, whether actual or constructive, of the existence of the Pad, its installation and/or any request for approval having been made with respect to the Pad. However, as referenced, the evidence is clear that the Corporation's Board and management did annual walk throughs of the properties each spring, for decades. These walk-through's included walking through the backyards of the units, where the Pad would have been clearly visible.

[61] On cross-examination, Apro admitted that she had no evidence or recollection of the Unit and its surroundings being blocked off or fenced in at any time, that would prevent the Pad from being visible during the walk-throughs. She further advised that she personally did the walk-throughs from about 1987 until about 2014, through the backyards of the units. The Pad was installed in the 1980s; so long ago that no one on behalf of the Corporation can even confirm when it was built.

[62] The first time the Corporation took steps to enforce s. 98 of the Act was in June 2024, when management sent the initial enforcement letter to the respondents. This alleged breach continued for nearly ten times the length of time provided for in Stasyna before the Corporation took steps to enforce the Act. In contrast, many of the cases provided by the applicant refer to breaches that occurred for a period of less than ten years. Recall that in Stasyna, the Corporation sent enforcement letters within a year or two of the alterations having been built. Of course, the divergence in timing and enforcement is not the determinative issue.

[63] The applicant submits that, to the extent it is necessary to rebut the allegation of bad faith, the Corporation seeks removal of the Pad because the structure is permanent which means if emergency access to utility lines or the foundation of the Unit is required, the presence of the Pad will be a hindrance.

[64] Apro stated that the primary reason for the Corporation's refusal to enter into a s. 98 agreement is that "certain utility feeds run into the unit from the back of the property and run underground beneath that area covered by the Pad. Should there ever be a need to conduct repairs on those utilities the Pad would need to be removed." She also stated that the presence of the Pad would interfere with the Corporation's efforts to repair cracks in the foundation, should such cracks appear in the future.

[65] When asked on cross-examination whether the Corporation has ever obtained an opinion from an engineer or other consultant supporting the proposition that the Pad is an issue, Apro responded in the negative. The Corporation never had an engineer or other professional engaged to look at the utilities. Nor has any utility company ever provided any correspondence to the Corporation that the existence of the subject Pad is impacting or could impact the utilities of the Corporation.

[66] As mentioned, s. 37 of the Act requires every director of a corporation, in exercising the powers and discharging the duties of office, to act honestly and in good faith, and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

[67] In Amlani v. York Condominium Corporation No. 473, 2020 ONSC 194, at para. 87, the court held that the business judgment rule is applicable in the contact of condominium corporations. The rule holds that board decisions should not be subject to microscopic examination; if the decision is made honestly, prudently, and in good faith and on reasonable grounds, it will not be second guessed by the courts.

[68] The Court in Amlani did not allow the corporation's board to rely on the protection of the business judgment rule. In making this finding, the court found that the corporation's refusal to meet with or negotiate with the unit owner was unreasonable. "To exercise judgment, the Board must give some consideration to available alternatives... there was no evidence before me to suggest that the Board considered alternatives on its own".

[69] The Corporation states that the basis of a denial for approving proposed alterations could be for reasons of safety concerns, aesthetic reasons, or reasons relating to the market value of the property. The applicant has referred to two reasons as to why the removal of the Pad is necessary, including that it would preclude emergency access to utility lines or the foundation of the Unit, it provided no independent evidence to support the legitimacy of these concerns. Nor has there been any other evidence that the existence of the Pad for the past forty years has caused any risk or liability to the Corporation.

[70] I am not persuaded that the Corporation's Board be entitled to the business judgment rule. Despite there being a clearly obvious resolution to bring the Pad into compliance with s. 98 of the Act, the Board did not they otherwise attempt to mediate or negotiate this dispute. Instead, the Corporation insisted that the removal of the Pad was the only solution to this issue. Given the evidence adduced before me, I find that the Corporation and its Board did not act reasonably or in good faith in addressing this specific issue.

Is a Section 98 Agreement the Appropriate Remedy?

[71] Prior to the scheduling of this hearing, I understand that the applicant had not been willing to entire into a s. 98 agreement, despite the period of time that had elapsed. For the purposes of this hearing, the applicant's alternate position is that it is willing to enter into a s.98 agreement.

[72] The respondents submit that they should not be required to remove the Pad. Yet, the respondents have made it clear, since as early as 2024, that they remain willing and able to comply with a s. 98 agreement with the Corporation.

[73] A s. 98 agreement would result in the impugned Pad being compliant with the Act. In my view, this would be a reasonable and affordable solution for both parties, while at the same time affording the respondents relief from any remediation expense and permit their continued enjoyment of their rear yard.

Conclusion:

[74] For all of the aforementioned reasons, the Corporation's relief sought in their application is dismissed.

[75] I find that the doctrine of laches applies in the circumstances of this specific case. The applicant's actions gave rise to the actual or constructive knowledge of the impugned Pad, but had acquiesced and did not take any action for decades, until a Correlative litigation matter arose. Further, I am satisfied that the Corporation did not act reasonably or in good faith in addressing this issue. In my opinion, the respondents are entitled to some equitable relief.

[76] The respondents shall not be compelled to remove, reconstruct or remediate the Pad while they continue to own and reside in their Unit, unless a demonstrated safety concern or a bonafide public utility issue arises.

[77] In balancing the interests of all parties and in the spirit of compliance with the Act, a s. 98 agreement shall be drafted in accordance with the agreed-upon language provided by the Corporation, at para. 19(c) of its Notice of Application.

Costs:

[78] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These cost memoranda shall not exceed 3 pages in length, (not including any Bills of Costs or Offers to settle). The respondents may serve and file their costs submissions within 15 days of the date of this endorsement. The applicant may file its submissions within 15 days of receipt of the respondents' materials. The respondents may file a brief reply within 5 days thereafter. If no materials are received by April 20, 2026, the issue of costs will be considered settled and the file will be closed.

A.J. Goodman J.

Date: March 10, 2026

Appendix A: Section 98 of the Condominium Act:

98 (1) An owner may make an addition, alteration or improvement to the common elements that is not contrary to this Act or the declaration if,

(a) the board, by resolution, has approved the proposed addition, alteration or improvement;

(b) the owner and the corporation have entered into an agreement that,

(i) allocates the cost of the proposed addition, alteration or improvement between the corporation and the owner,

(ii) sets out the respective duties and responsibilities, including the responsibilities for the cost of repair after damage, maintenance and insurance, of the corporation and the owner with respect to the proposed addition, alteration or improvement, and

(iii) sets out the other matters that the regulations made under this Act require;

(c) subject to subsection (2), the requirements of section 97 have been met in cases where that section would apply if the proposed addition, alteration or improvement were done by the corporation; and

(d) the corporation has included a copy of the agreement described in clause (b) in the notice that the corporation is required to send to the owners. 1998, c. 19, s. 98 (1).

No notice or approval

(2) Clauses (1) (c) and (d) do not apply if the proposed addition, alteration or improvement relates to a part of the common elements of which the owner has exclusive use and if the board is satisfied on the evidence that it may require that the proposed addition, alteration or improvement,

(a) will not have an adverse effect on units owned by other owners;

(b) will not give rise to any expense to the corporation;

(c) will not detract from the appearance of buildings on the property;

(d) will not affect the structural integrity of buildings on the property according to a certificate of an engineer, if the proposed addition, alteration or improvement involves a change to the structure of the buildings; and

(e) will not contravene the declaration or any prescribed requirements. 1998, c. 19, s. 98 (2).