Gustav Diedericks v Parc du Mont Home Owners Association

The applicant, Gustav Diedericks, is the registered owner of Unit 38 in Parc du Mont Home Owners Association. In or about May 2022 he installed solar panels on his house without first obtaining trustee approval. He contended that the HOA constitution and rules did not expressly require prior approval for such installation, and that the only relevant provision concerned structural changes, whereas solar panels were merely fixtures affecting aesthetics rather than structure. Several months later, the managing agent informed him that previous trustee decisions required all rooftop solar panels to be black to preserve uniformity and that external changes required prior trustee approval. Correspondence followed in which the trustees maintained their stance and threatened penalties if the panels were not changed. The applicant then approached the CSOS, asserting that he had not contravened the constitution and seeking effectively to overturn or amend the HOA's position on solar panels. The respondent HOA opposed the application and submitted that at an AGM the applicant had offered to replace the panels with black panels within six months if penalties were waived, and that this proposal had been accepted by the trustees as a compromise.

• Whether the applicant contravened the respondent HOA's constitution or rules by installing solar panels without prior approval.
• Whether the trustees were entitled to require that rooftop solar panels be black in order to preserve aesthetic uniformity in the scheme.
• Whether CSOS could grant relief under section 39(4)(d) of the CSOS Act to overturn the outcome of a meeting or effectively alter the HOA's constitution or resolutions on the facts presented.
• Whether the respondent had acted contrary to the best interests of the scheme in enforcing aesthetic and approval requirements concerning solar panels.

The application was dismissed. The adjudicator ordered that the relief sought by the applicant against the respondent is dismissed, with no order as to costs.

An adjudicator under the CSOS Act may not substitute the Ombud's or adjudicator's decision for that of a community scheme's valid internal governance structures merely because an owner disagrees with an aesthetic or approval decision. Where the scheme has adopted and enforced a rule or resolution concerning external uniformity, and there is no evidence that the association acted outside its powers or contrary to the best interests of the scheme, relief to overturn such decision or compel amendment of the constitution should be refused. CSOS may grant only relief that is competent and enforceable under section 39 of the Act.

The adjudicator observed that the legislature appears to have intended to limit or discourage CSOS interference in decisions of community schemes, especially where unanimous resolutions are involved. The decision also contains broader remarks, drawn from case law, about the categories of relief available under section 39 and the primarily scheme-related nature of CSOS jurisdiction. To the extent these comments went beyond what was necessary to dismiss the application, they are obiter. The judgment does not clearly identify any further distinct obiter dicta.

The decision illustrates the CSOS adjudicator's reluctance to interfere with internal governance and aesthetic decisions of a community scheme where those decisions are presented as having been validly taken and aligned with the scheme's interests. It also underscores that CSOS relief is confined to powers expressly conferred by section 39 of the CSOS Act and that adjudicators will not readily amend constitutions or substitute their own views for those of trustees or members on aesthetic uniformity absent clear unlawfulness or unreasonableness.