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You Don’t Own It: Your Balcony As a “Common Element”

Surprise! It’s one of the things that surprises many first-time condo owners. That balcony that you can access only through your suite, through sliding glass doors from your own unit… the one that only you or someone from your condo can get to (without dangerously crawling over the railing from the neighbouring unit) – – isn’t yours. (More about common elements in this CMHC publication)

Nine times out of ten the balconies in condo buildings are owned and operated by the building’s property manager and it’s strata council or condo board. (Check your condominium’s governing documents to find out precisely where your unit’s boundaries are.) It’s called “exclusive use common element” and it causes much confusion, some challenges and in some cases the confusion results in extra costs for the suite owner.

Tom & Sue’s Story

The move from their country estate north of Toronto to a brand new 1-bedroom plus den condo in a sparkling building near Toronto’s waterfront was an exciting and busy time for Susan and Tom (not their real names). Planning the painting, picking the flooring and fixtures in the late stages of construction was fun, too. Once they took possession and the interior of their new suite started to look a little more like home, Susan and Tom turned their attention to their 200 square foot west-facing balcony.

First they added some floating, interlocking outdoor flooring. Then they turned their attention to lighting, and installed some chic hanging fixtures from the ceiling of the balcony, drilling into the concrete to properly anchor the lights. They carefully planned the electrical cords and had them stapled and tastefully attached to the exterior wall running surreptitiously to the exterior power outlet.

As they were choosing the right outdoor furniture, they received a letter from the newly-elected condo board: they had violated the bylaws and must immediately remove the lighting, all cords, and an engineering inspection was being scheduled to assess the damage. And yes, they’d be responsible for covering the associated costs.

Susan and Tom were shocked. They had no idea what they were doing was wrong. After all, they had made hundreds of similar upgrades to their country estate over the years and they were conscientious, clean and careful with their changes.

Why Most Balconies Are A Common Element

Balconies form part of the external envelope of a building. Proper maintenance, structural upgrades and visual conformity, if applicable, fall under the purview of the building because it is inextricably linked to the rest of the building’s exterior: waterproofing or leaks, weight-bearing load, cracks or damage, railing or guard safety (Remember the falling glass issues in Toronto? Yes, part of the building’s responsibility). Any upkeep or repairs would come out of the building’s maintenance budget and reserve fund – – not the individual owners’ – – unless the individual owners caused the need for the repairs in the first place.

It is also a common element because of the potential impact on neighbours. When you’re out on your exterior balcony you’re often very close to your neighbour. You can hear their conversations clearly, smell their cigarette smoke or cologne, and in the case of lighting, your neighbour’s exterior lighting will most likely be visible to you. In this environment, the fact that legal ownership rests with the building helps clarify and underscore that you are not in fact in your own home out on your balcony, you are enjoying common space in close confines to your neighbours. It helps eliminate, or at least mitigate, potential conflicts between neighbours because the “rights” of each unit owner are removed from the equation and the building has absolute authority on how those balconies can be used.

What it means to you

Obviously, this means you don’t have carte blanche with decorating or upgrading activities on your balcony. It means thinking about your balcony as a shared space rather than a space exclusively for you. Read your bylaws. To be safe, if you’re not sure whether something you plan is kosher, check with your property manager first. Understand whether your plans will result in actual modifications or alterations to the building exterior in any way. For example, if you wish to add ceramic tile to the floor, the adhesive required could be viewed as an alteration to the structure. Something like that makes it easier for your condo governing body to refuse to grant permission.

Seeking approval for changes

When you’re seeking the proper approvals for something you’d like to do on your balcony, be patient. Your request may need to go before your strata council or condo board, and it’s unlikely that a special meeting will be called simply to address your request. There are a number of other variables that can affect the time it takes to get a response, as well: Will this decision set a precedent? How will it impact your neighbours? Could it lead to additional maintenance costs down the road? The first response you receive may only be a request for more information or documentation, as well. So, plan ahead, know the rules and your rights, and be patient.

Back to Tom and Sue

They ended up paying to repair the holes they’d drilled into the ceiling of their balcony (the base of their upstairs neighbour’s balcony). And they gained a better understanding of the rules in their building restricting exterior lighting on balconies due to the potential for unwanted light spillage into neighbouring balconies. They opted instead for strategically placed electric candles, and they are enjoying the urban outdoor space as they continue to adjust to the differences between city life, condo community and their former rural ways.

 

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