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OK, I think what we are talking about here is a by-law that allows the exclusive use of the airspace above common property for the construction of the pergola as well as anything that is attached to common property. Whether it’s ‘exclusive use” or ‘Special Resolution’ doesn’t really matter – it’s a by-law.
The terms of the by-law should contain the dimensions of the pergola or at least a reference to a plan. The by-law should also contain an agreement about who is going to look after this construction.
This is what the Act says:
Division 4 Special provisions for by-laws conferring certain rights or privileges
54 By-law must provide for maintenance of property
(1) A by-law to which this Division applies must:
(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or
(b) impose on the owner or owners concerned the responsibility for that maintenance and upkeep.
And …
(3) To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.
And my reading of that is that the by-law isn’t valid if it doesn’t say who is responsible for maintenance.
Also, if the Pergola hasn’t been built in accordance with the by-law, the aggrieved owner can apply to the CTTT for an order compelling the pergola owner to comply with the terms of the by-law.
Now, as you know, I’m not a lawyer so definitive opinions are welcome