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Ask the lawyer: Can the condo corporation install permanent access to drain stack clean outs, possibly decreasing unit value?

A Reader asks: I live in a downtown Toronto condo. Recently my condo board had kitchen drain stack clean outs installed in several units. My unit was one of the selected units. Now the board wants to install a permanent access grill to the clean out in my living/dining room, claiming they cannot access the clean out beneath the kitchen counter. Does the board have the right to alter my condo’s appearance, which could potentially decrease its value?

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Richard Answers: Since the access grill will be installed within the homeowners unit in order to access the clean out in the walls (which is considered part of the common elements), this will likely be considered a “service easement” pursuant to s. 12(1) of the Condominium Act, 1998:

Easements

12(1) The following easements are appurtenant to each unit and shall be for the benefit of the owner of the unit and the corporation: 

1. An easement for the provision of a service through the common elements or any other unit.

Accordingly, the condo corporation is entitled to the benefit of an easement for a service through the common elements or another unit, as the installation of the access grill is necessary for the service of the clean outs and ultimately benefits the building’s unit holders.

Based on case law, courts use a fairly broad definition of the concept of “service” and have even held that newly-installed pipes that visibly run through a unit may be considered a “service easement” as long as the pipes are necessary to better help service water to the building’s unit holders. To compare the two, the installation of the access grill would likely be considered less invasive than pipes visibly running through a unit. As such, even if the installation of the access grill decreases the value of the unit (which I don’t believe it would), there is little the homeowner can do as the alterations benefit the condo corporation and the building’s unit holders.  

RICHARD P. HOFFMAN

Richard Hoffman has been a member of DelZotto, Zorzi LLP since 1992, practicing in the area of condominium law. He has represented condominium corporations and unit owners through all stages of the litigation process and at all levels of Ontario Courts (Superior Court of Justice, Divisional Court and Court of Appeal). He is well experienced in handling all types of condominium litigation, from applications to enforcing compliance with declarations, by-laws or rules, to handling multi-million dollar claims for budget misrepresentation. He has also advised condominium corporations of various sizes on all facets of condominium law.

Richard is presently a member of the Canadian Condominium Institute and regularly lectures on contract and agency law in the condominium context at Humber College, as well, he is a regular contributor to various condominium magazines and has contributed to the condominium section of the Toronto Star.

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