Repair and Maintenance Issues – Things to Watch For

Concern 1: The Definitions of “repair” and “maintenance” will change

With respect to the definition of “maintenance”, currently section 90(2) of the Condominium Act says that:

The obligation to maintain includes the obligation to repair after normal wear and tear but does not include the obligation to repair after damage. 

This means that the obligation to “maintain” currently appears to include end of life replacement. Continue reading “Repair and Maintenance Issues – Things to Watch For”

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Appealing Decisions From the Condominium Authority Tribunal

With the Condominium Authority Tribunal (“CAT”) just recently turning a year old, we are beginning to see more and more CAT decisions being released. As the jurisdiction of this tribunal is expected to increase, we also expect an increasing number of condominium disputes to be resolved through this online dispute resolution process.

However, what happens if one disagrees with a decision from the CAT? Is there a way to appeal a decision from the CAT?   Continue reading “Appealing Decisions From the Condominium Authority Tribunal”

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Amendments to the Condominium Act: Repair & Insurance Obligations in Relation to Units

The coming legislative amendments will bring some changes relating to repair and maintenance obligations of condominium corporations and owners.   What are those changes; and what impact will they have on condominium insurance?

The Condominium Act (the “Act”) currently indicates that, subject to the contents of a condominium’s declaration, the condominium corporation is responsible for repairing units after damage.  The amended Act will say that owners must repair their units – unless the declaration says otherwise.  In our view, this will have very little impact on most condominiums, for the following reason:  Almost all declarations spell out the repair and maintenance obligations.  In other words, the Act seldom determines the repair and maintenance obligations.  As a result, the repair obligations contained in the vast majority of condominium declarations will simply continue to apply, regardless of the changed wording of the Act.

This said, in our view, it will nonetheless make sense for all corporations to review their Declarations – and to consider whether or not the Declaration should be amended – for the following reasons:

(a) The definitions of “repair” and “maintenance” will change – and this might mean some changes of responsibility in the particular condominium.  [It would be a good idea for the corporation to understand any such changes of responsibility – and also to consider any resulting desire to amend the Declaration (see below).]

(b) If the Declaration does not spell out the repair and maintenance obligations, the amendments to the Act will indeed change the responsibilities in that condominium.

(c) Some corporations might simply wish to consider an amendment to the Declaration, to change the repair and maintenance obligations set out in the Declaration, whether or not as a result of the coming changes to the Act.

What about condominium insurance?

Notwithstanding the pending amendments to the Act, condominium corporations will still be obligated – under Section 99 of the Act – to obtain and maintain insurance covering the common elements and the standard units.   So even though owners may have the obligation to repair their units (as is most often the case now), owners have the benefit of insurance – arranged on their behalves by the corporation – covering their standard units.

The only changes to the insurance regime will be as follows:

(a) There will be a prescribed standard unit description that will apply in cases where condominium corporations don’t have a standard unit by-law.

(b) As described in our recent blog post, there will be changes to responsibility for the deductibles on condominium corporation insurance policies.

Otherwise, the insurance regime is not changing.

Stay tuned to Condo Law News for more blogs about amendments to the Condominium Act.

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Defining “Repair”

A recent decision of the Ontario Superior Court, Middlesex Condominium Corp. No. 195 v Sunbelt, again highlights the importance of defining “repair”, and particularly distinguishing between “repair” and “maintenance”.

The MCC 195 case dealt with two issues:

  1. Responsibility for certain hydro charges; and
  2. Responsibility for window repairs.

In this blog post, I will focus on the second issue – window repairs. In the MCC 195 case, the windows of the commercial units needed replacement (due to a building defect), and the condominium corporation asserted that this was the responsibility of the commercial unit owners.

MCC 195’s declaration says that the commercial owners are obligated to repair and maintain their windows – even though the windows are part of the common elements. However, the Court held that these window repairs were the responsibility of the condominium corporation because the windows were not designated for the exclusive use of the commercial owners. The Court said:

“[Section 91 of the Condominium Act] does not grant a condominium corporation the authority to impose on a unit owner the obligation to repair common elements after damage, except for common elements designated for the exclusive use of an owner.”

Here’s the bottom line:

  • Under the current Condominium Act, a condominium declaration can say that owners must maintain any part of the common elements.
  • However, under the current Condominium Act, a condominium declaration can only say that owners must repair their exclusive-use common elements. The MCC 195 case also tells us that this applies only to specifically designated exclusive-use common elements.

Thankfully, this issue is eliminated by the amendments to the Condominium Act, which are expected to come into force sometime in 2017. Under the amendments, Section 91 will allow a declaration to say that owners must maintain or repair any part of the common elements. So, that’s a good thing.

However, there’s another important – and possibly problematic – change contained in the amendments to the Act. The meaning of “repair” will change. Some work that is currently “maintenance” will become “repair” when the amendments come into force.

Currently, Section 90 of the Act says that the obligation to maintain “includes the obligation to repair after normal wear and tear”. In my view, this makes good sense. When something fails at the end of its normal life (i.e. after normal wear and tear), the required work sounds to me like “maintenance”. However, this is eliminated by the amendments to the Act, which introduce the following new definition of repair:

“’repair’ means to repair or replace after normal wear and tear, damage or failure.”

So, when the amendments to the Act come into force, what is now “maintenance” may soon be “repair”!

In most cases, this change in the meaning of the terms “maintenance” and “repair” won’t have any ramifications. But this change will matter in cases where responsibilities to maintain and repair a particular feature of the property are “split” or “divided” between the corporation and the owners. In those cases, the responsibilities may be about to change!

Need further clarification? Get in touch with our Condominium Law Group today.

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