Condo boards and owners should be familiar with the concept of “common elements” and “units”. While there is no “one size fits all” approach to distinguishing the two, in simplified terms, anything that is not part of a “unit” is a “common element”. Diligent boards and owners should review the condo’s Declaration for inclusions/ exclusions to and from the unit, maintenance and repair obligations and Schedule “C” to determine unit boundaries; the condo’s registered plan drawings will lay that out in an illustrated form. Understanding these points is critically important.
In Landont Ltd. v. Frontenac Condominium Corp. No. 11, Landont Ltd. used their unit to operate a commercial parking lot. Landont and FCC 11 agreed that the concrete slab below the lot was a common element, but this case turned on whether a waterproofing membrane installed on the upper surface of the concrete slab was part of the common elements. The distinction fundamentally determined which party was responsible for maintaining and repairing the membrane.
The Court ultimately held that the membrane was a common element based on the circumstances:
- The membrane was installed 20 years after the declaration was registered. FCC 11 claimed it installed the membrane “on behalf of the then owner of the Unit”. However, FCC 11 paid for the installation but there was no evidence this cost was charged back to the former owner;
- FCC 11 subsequently amended its declaration to clarify the maintenance and repair responsibilities with respect to windows and the garage overhead door but made no mention of the membrane; and
- FCC 11’s reserve fund planning included an allowance for replacing the membrane.
Since the membrane was a common element, the Court looked at the Condo Act and FCC 11’s declaration to conclude that FCC 11 was responsible for maintaining and repairing the membrane. But, by the same token, Landont was responsible for maintaining their unit to mitigate the effects of wear and tear to the membrane. The Court held that Landont failed to perform preventative maintenance and that it was reasonable for FCC 11 to power wash the parking garage on Landont’s behalf and charge the cost back.
Maintenance and repair issues are sometimes contentious between owners and condo corporations. The key dispute for both parties is often where the “units” and “common elements” begin and end. This case serves as a cautionary tale to condos. Here are Tony’s Takeaways:
- Confirm unit boundaries: It is imperative for condo boards to review Schedule “C” of the declaration in conjunction with the condo’s registered plan drawings – keep in mind that some declarations also include a definition of “unit” which includes/omits components from the unit. If there is any uncertainty or confusion, consult your lawyers and engineers.
- Determine maintenance and repair obligations and be consistent: Once you know where the “units” and “common elements” lie, its crucial to determine who is responsible for maintaining and repairing those components. The default position under the Condo Act is that condos maintain the common elements and owners maintain units and occasionally exclusive use common elements. In the case of damage, the condo is responsible for repairing both common elements and units. However, these obligations may be, and often are, modified under the declaration. Once maintenance and repair obligations are outlined, condos must consistently stick to these responsibilities. Condos should not carry out these obligations for owners nor should they allow owners to carry out these obligations for the condo.
- Do not assume responsibility for owner’s obligations: This is the biggest takeaway from this decision. We commonly run into this scenario: an owner’s unit is damaged and they are responsible for repairing their unit after the fact but the condo sends in its contractor; the contractor performs the work but the owner is dissatisfied; the owner sues the condo. Unless a condo is carrying out work on behalf of an owner where the owner has failed to do so within a reasonable time, condos must be careful not to suggest they are assuming the responsibility “on behalf of the owner”.
- We appreciate that condos may encourage owners to use the corporation’s contractor for assurance, but it should be made clear that it is still the owner’s responsibility to maintain/repair their unit and that any costs borne by the condo will be charged back. There is a fine line between “helping out a neighbour” and “taking matters into your own hands”.
After discovering damage to its concrete slab, FCC 11 could have insisted the owner install the membrane to prevent damage to the condo’s concrete slab instead of doing it “on behalf of the owner”. Since the membrane installation would need to be applied directly to FCC 11’s common element concrete slab, FCC 11 could have imposed a section 98 agreement on the owner which could assign all maintenance and repair obligations to the owner and bind subsequent purchasers. Instead, FCC 11 is now burdened with maintaining and repairing a membrane that its owners don’t use nor benefit from.