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.
However, if and when the “second phase amendments” to the Condominium Act come into force, the legislation will no longer contain a definition of maintenance. Instead, it will contain the following new definition of “repair”:
“repair” means to repair or replace after normal wear and tear, damage, or failure.
So in summary: When eventually amended, the Condominium Act won’t contain the current definition of maintenance, except to say that maintenance doesn’t include repair. And again, the legislation will contain a new definition of repair.
The point is that the meaning of the terms “repair” and “maintenance” are expected to change. And the repair and maintenance obligations in a particular condominium may therefore change (depending upon what the governing documents say).
Here’s an example:
Suppose your declaration says that the owners must maintain (but not repair) certain features (like windows, exterior doors, or fan coils). Under the current definition, this means that the owners have the obligation to replace these features at the end of their lives. But when the Condominium Act is amended, this might no longer be the case!
Concern 2: Owner obligations to repair the common elements may change
A further concern is as follows: Section 91 of the Condominium Act (in its present form) says that a condominium’s declaration can say that owners are obligated to repair parts of the common elements…..but only “those parts of the common elements of which the owner has the exclusive use.”
So, it’s possible that a declaration provision might not comply with this requirement.
Here’s an example:
Suppose the declaration says that owners must repair their windows. If the windows are common elements but are NOT exclusive-use common elements, this provision in the declaration might not be valid (under the current Condominium Act).
However, if and when the Condominium Act is amended, this will also change. In particular, the amended Condominium Act will say that a condominium’s declaration can require owners to repair any parts of the common elements. So, this may serve to “validate” such provisions in the declaration. But again, it will also mean a change to the current legal obligations!
Summary – What to do?
Ultimately, determining the repair and maintenance obligations requires a careful review of a condominium’s declaration, by-laws, rules, and survey plans.
Examples of things to look for and possible confusion are as follows:
- If owners must maintain their balconies, patios, or parking spaces, what exactly does this mean? For instance, does this include major concrete work in the case of a concrete balcony? What about replacement of wood framing? What about the asphalt or traffic membrane of a parking space?
- If owners must maintain parts (like surfaces) of their windows, entry doors, and/or patio doors, what exactly does this include?
- Are there any other special or unusual repair or maintenance obligations? Are they valid?
- Are any pipes, wires or other apparatus lying outside the normal boundaries of a unit included as part of the unit? Or, if not, is there a provision (in the declaration) stating that owners must nevertheless maintain and/or repair such features?
- Are any pipes, wires or other apparatus lying inside the normal boundaries of the unit excluded from the unit?
If any problems or concerns are revealed, possible remedies will depend on the circumstances, but can include the following:
- In some cases, an amendment to the declaration and/or description might be required.
- In other cases, a “clarifying by-law” might be sufficient.
- And in other cases, a “clarifying rule” might be sufficient.
Stay tuned to Condo Law News to keep up to date on the latest developments!