Board vs. Owner: Who Has the Say in Modifying Common Elements

Want to upgrade your lobby, tile your balcony, or add a new amenity to your building? Great ideas! But before you break out the tools, let's talk about the rules that keep everyone protected and happy. Modifying common elements can be wonderful improvements, but they need to follow proper procedures to avoid headaches down the road.

For small, self-managed condos where neighbors work together to keep things running smoothly, understanding these guidelines helps everyone make positive changes confidently and legally.

The good news? Ontario's Condominium Act provides clear frameworks that, once you understand them, make the whole process pretty straightforward.

Here's the key thing to know: there are two different paths depending on who's proposing the change. Section 97 of the Condominium Act governs modifications made by the condominium corporation itself, while Section 98 covers modifications requested by individual unit owners. Let's break down both so you know exactly what to expect.

What Counts as a Modification?

First things first; not every change is a "modification." When your condo completes repairs using materials similar in quality to the originals (following current construction standards), that's just regular maintenance.  But adding something new, changing services, or making improvements, those are modifications that need proper procedures.

Your board has three different paths forward depending on what you're planning and how much it costs. Understanding which category your project falls into tells you exactly what steps to follow.

Modifications Without Notice to Owners

Some changes can happen right away without formal notice to owners. These include modifications for safety or legal compliance, or small projects costing less than $1,000 or 1% of your annual budget (whichever is higher) in any given month. Adding security cameras for a safety concern or making changes required by law? Your board can move forward without the formal process.

Modifications Requiring Notice to Owners

For bigger modifications that don't qualify for the exceptions above, your board needs to give owners notice describing what you're planning, how much it'll cost, and how you'll pay for it. The important part? Owners have 30 days to call a meeting if they want to discuss or vote against the plan. If nobody requests a meeting, or if a meeting happens but nobody votes against it, you're good to go!

Substantial Modifications Requiring Owner Approval

Here's where it gets more formal. "Substantial modifications", anything costing more than 10% of your annual budget need approval from at least two-thirds of unit owners through a vote at a meeting. Your board can also choose to treat any modification as substantial if you think it might be controversial, even if it's under the cost threshold.

Getting that two-thirds approval can be tricky since you need enough people at the meeting, so communicate early and often with your community!

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Critical Warning: Never try to dodge these rules by splitting one project into smaller pieces to stay under the thresholds. Courts see right through this, and directors who try it could face personal liability. If it's logically one project, treat it as one project!

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When You Want to Make Changes to Common Elements

Maybe you'd love to make improvements near your unit. That's totally understandable.... we all want to personalize our spaces! Since these changes affect common elements everyone shares, there's a process to follow that protects both you and your neighbors.

The Four Essential Steps for Owner Modifications

1. Submit Your Proposal

Write up your proposal with details about what you want to do, the materials you'll use, and how you'll complete the work. The more complete your plan, the faster the board can review it.

2. Board Review and Expert Assessment

The board will look at your proposal and might hire an expert (like an engineer) to make sure your plan won't cause problems. You might need to cover this review cost, but it protects everyone.

3. Agreement Execution

If approved, you'll sign an agreement with the condo that spells out who pays for what, who's responsible for future maintenance, and who owns the improvement. This protects both you and future owners of your unit.

4. Title Registration

The agreement gets registered on your unit's title so future buyers know about the modification and the responsibilities that come with it. This transparency helps everyone!

When Owner Modifications Require Notice to Other Owners

In some situations, owner-requested modifications trigger the same notice requirements to other owners that would apply if the board were proposing the change.

Here's some good news: if you're modifying your exclusive-use balcony or patio, and your changes won't affect other units, cost the corporation money, mess with the building's appearance or structure, or violate any rules, your board can often approve without notifying other owners. That makes simple improvements to your personal space much easier! 

Note: Boards must carefully evaluate whether proposed modifications comply with governing documents, meet building codes and standards, maintain aesthetic consistency, protect structural integrity, avoid creating ongoing corporation expenses, and respect other owners' rights and enjoyment.

Practical Guidance for Smooth Modifications

Whether you're on the board considering improvements or an owner hoping to personalize your space, a few practical tips help everything go smoothly. For boards, talk with owners early about proposed changes, even when notice isn't legally required. Building support through transparency makes everything easier. When you're not sure about procedures, a quick call to a condo lawyer costs way less than fixing mistakes later.

For owners, start conversations with your board early in your planning.  Like Dinesh Paliwal, former CEO of Harman International, says, 

"Collaboration is a key part of the success of any organization, executed through a clearly defined vision and mission and based on transparency and constant communication."

Understanding their concerns before you've bought materials or finalized plans gives you flexibility to adjust if needed. Be patient with the review process; it exists to protect everyone, including you. And remember that approved modifications come with ongoing maintenance responsibilities, so make sure you're prepared for the long haul.

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Modifications to common elements are opportunities to make your condo community even better! Whether it's the board upgrading shared spaces or owners personalizing their units, following proper procedures ensures changes happen smoothly without disputes or legal complications.

You don't need to be a legal expert; just follow the guidelines, check your declaration when you're unsure, and don't hesitate to ask for help when you need it. Your community can embrace positive changes while maintaining the trust and cooperation that make condo living work. 

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