Trading in driveways and shovels and roof repairs for a view, a short walk to restaurants and the theatre, and a warm dry car every time you get in it. Trading your backyard and lawnmower for a smaller outdoor space – your balcony – and a view. If this sounds familiar, you’re probably about to, or have already, downsized to a condo. And now you may be looking for ways to make your new, compact outdoor space as inviting as possible.
The good news is you’ve got lots of options. The bad news is that there’s a myth out there that Section 98 of Ontario’s Condominium Act either prevents you from expanding your home experiences to your balcony or makes it such an onerous approval task that you question whether it is worth it.
What’s Section 98? It’s the section of the legislation in Ontario that outlines what’s required for a unit owner to make any addition, alteration or improvement to their exclusive use common elements. It outlines that before a unit owner can undertake alterations, additions or improvements to the common elements, the following must occur:
- the condo board must approve the changes
- the changes must comply with both the Act and the condo bylaws
- there must be an agreement between the unit owner and the condo corporation about said changes, and
- the agreement must be registered on title to the owner’s unit.
The agreement is supposed to detail any cost split between the condo and unit owner, how repairs and maintenance and insurance will be handled, and who “owns” the improvement.
This all makes perfect sense, if you think about it from the perspective of the condo board and its responsibility for ensuring proper upkeep and maintenance of all common elements.
But here’s where the myth comes in. This section presumes that every single alteration or improvement makes structural changes or is in some way permanent. That’s just quite simply not true.
You can expand your home experiences with floating outdoor flooring for condo balconies – – without all the heavy-duty section 98 requirements. Why? Because this type of flooring is not affixed to any part of the structure. No glue, no grout, no nails. And if it doesn’t adhere in any way to the floor, wall, or any other part of the structure, it maintains the integrity of the building, balcony or deck construction, and remains within the vast majority of all condo rules.
Because it isn’t affixed, this type of flooring is also easily removable. Just like furniture. You own it, you take it with you when you leave, if you choose. If your condo board doesn’t require a formal agreement before you purchase your patio furniture, then they shouldn’t require a formal agreement before you proceed with this type of floating flooring.
What you need to be careful of, though, is to make the distinction between the modular, floating flooring to which we refer, and other types of flooring or finishings you may contemplate for your balcony. If you want your balcony to resemble the deck you had in your backyard, with long seamless planks, matching benches and trellises etcetera, you’re likely squarely back in Section 98 territory.
As always, we recommend an up-front and above-board approach. You can talk to us about your plans, and we’ll help you with what we know. Each condo has different governing documents (declaration, by-laws, rules) so we encourage you to ensure you are familiar with your condo by-laws, and to seek out your board to determine what type of approval you may need to proceed.
And if you don’t like what your board is telling you, you can always connect with the Ontario Condo Owners’ Association(COA) about your rights, and what’s right. The COA has also been actively involved in the consultation process for “Building a Better Condominium Act”, the work to modernize Ontario’s Act. The “review” phase is technically over and the redrafting of the legislation already underway, but the public is still welcome to submit comments to the Ontario Ministry of Consumer Services.
To offer some perspective, legislation in other provinces is not quite so onerous. In BC, where KANDY was founded and is currently headquartered, chapter 43 of the Strata Property Act states more simply that an owner must obtain written approval of the strata corporation before making changes that involve the structure, exterior, chimneys, stairs, balconies or other things attached to the exterior of the building. It also states that the strata corporation must not “unreasonably withhold its approval”.
So be sure you know the rules in your building. Know your rights as an owner, and if you’re passionate about condo rules that strike the right balance between protection of the collective and freedom of the property owner … let the COA or the Ministry of Consumer Services know.
It may not be too late for you to make your voice heard!