Fey Knows – I suggest you read the case to fully understand the facts of the case, the nuances, and the reasoning.
It was Backstick and not me who mentioned the ‘common property is not only exclusive use but also by the by-laws to be maintained by the lot owner’.
The factual scenario of the El Khouri case (those that relate to Backstick’s issue) in a nutshell are: The waterproof membrane on the exclusive use balcony was leaking. All internal and external waterproofing is the responsibility of the Owners Corporation (including the function of any structure) except where a lot owner causes damage to waterproofing. The exclusive use owner had not damaged the waterproofing. The OC had previously given approval to the exclusive use owner to build a structure on the exclusive use area with a by-law giving responsibility to the exclusive use owner to repair and maintain the structure. The structure built on the exclusive balcony needed to be removed so that the OC could gain access to the membrane to enable repairs. The OC was responsible for reinstalling the exclusive use owner structure once the membrane was repaired.