Repairs and maintenance

Repair and maintenance obligations for units and common elements can be a confusing subject, as the requirements can vary from one condo corporation to another, depending on what is outlined in a condo corporation’s governing documents (i.e. the declaration and by-laws). Condo owners should familiarize themselves with their declaration and by-laws to better understand what their condo corporation’s repair and maintenance obligations are, as well as their own. If any repairs or maintenance needs to be conducted, owners need to be aware of the following.

Determining Responsibility for Maintenance and Repairs

The Condominium Act, 1998 (Condo Act) sets out basic guidelines on maintenance and repair obligations:

• Under section 89 of the Condo Act, condo corporations are responsible for repairing damage to both the common elements and units.
• Under section 90 of the Condo Act, unit owners are responsible for maintaining their units (i.e. upkeep and repair after normal wear and tear) and condo corporations are responsible for maintaining the common elements (e.g. parking, gardens, hallways, elevators, amenities, etc.).
• Importantly, section 91 of the Condo Act allows the condo corporation’s declaration to alter the obligation to repair after damage and/or to maintain. This means that when determining who is responsible for maintenance or a repair, it is necessary to start by reviewing the condo corporation’s relevant documents, such as the declaration.

The condo corporation’s declaration will contain key information, such as the proportion each unit contributes to the common expenses, the boundaries of the units and common elements, and an indication of the number and type of units. A declaration’s Schedule C will outline unit boundaries and can clarify what is considered part of the unit and what is part of the common elements. This distinction is crucial in establishing maintenance and repair responsibilities, especially in areas that are not so clear, such as damage behind walls (e.g. plumbing, electrical, etc.).

Standard Unit Definition

Another consideration when determining responsibility for repairs after damage has occurred is what the Condo Act details about standard units and improvements. Section 89 of the Condo Act, states that the obligation to repair after damage does not include improvements made to units. Therefore, condo corporations are only responsible for repairing up to what is defined as the standard unit, and improvements made to a unit are each owners’ responsibility.

What makes up a standard unit for a condo corporation will be defined in either:

• A by-law of the condo corporation commonly referred to as the standard unit by-law. The by-law will detail which components of a unit are standard, and therefore, the responsibility of the condo corporation. Anything not included in the definition of the standard unit would then be considered improvements, and consequently, the responsibility of the unit owner. The standard unit by-law not only determines repairs after damage, but also outlines responsibilities for property insurance coverage; or
• If a condo corporation does not have a standard unit by-law, the definition of a standard unit will be defined in a schedule handed over by the declarant to the condo corporation, at or within 30 days of the turn-over meeting.

Always remember that when trying to determine responsibility it is essential to review the Condo Act and your condo corporation’s governing documents. You can also get in contact with the condo manager or condo board of directors to clarify any questions or concerns.

If an owner does not have a copy of their declaration or by-laws, they can request them from their condo corporation using the Request for Records form.

Property Insurance

After establishing who is responsible for repairs, it is essential to also consider property insurance implications. To determine whether it is the responsibility of the owner or the condo corporation’s insurance policy to cover the damage, again it is important to consult the Condo Act and the governing documents of the condo corporation. Under section 99 of the Condo Act, condo corporations are obligated to maintain insurance on behalf of the condo corporation and the owners for damages to both the common elements and units made by major perils.

Section 99 of the Condo Act defines major perils to include events such as fire, lightning, smoke, windstorm, hail, explosion, water escape, strikes, riots or civil commotion, impact by aircraft or vehicles, vandalism or malicious acts, or any other event specified in the condo corporation’s declaration or by-laws. However, the Condo Act states the obligation of condo corporations to obtain and maintain property insurance does not cover improvements made to a unit.

The condo corporation’s definition of the standard, through the documents noted above, will determine what is covered by whom. Whatever is defined as the standard unit must be covered by the condo corporation’s property insurance policy. Conversely, it would be the unit owner’s responsibility to cover the costs of any damage to improvements and personal property or belongings, whether they are insured or not.

Owners are not required under the Condo Act to obtain or maintain insurance, but they could be required to if stated in their condo corporation’s governing documents. This insurance policy may cover improvements made to their unit and personal property within their unit and include items such as fixtures, furnishings, equipment, and personal property.

Deductibles

Deductibles are payments that insurance holders have to make before insurance companies will release funds to cover damages. Condo corporations must carry insurance, and owners should strongly consider doing so as well.

Owners are responsible for paying their own deductibles most of the time, but there could be situations where they will be responsible for paying their condo corporation’s deductibles as well.

3 steps for owners to protect themselves against insurance deductible chargebacks:

1. Understand your obligations — In some situations, owners may be required to cover the corporation’s insurance deductible or the amount of the damage, whichever is less.
2. Stay up to date — Owners should carefully review their condo’s governing documents and any recently issued Periodic Information Certificates or Information Certificate Updates to understand repair obligations, insurance implications and information about deductibles.
3. Talk to your broker – Owners should speak with their insurance broker to understand what their needs are, including potential coverage for being charged back for the corporation’s deductible.

Condo corporations must update owners about any deductible changes:

Corporations must send a Periodic Information Certificate within 60 days following the end of the 1st and 3rd quarter of the corporation’s fiscal year. The PIC includes important information about the condo corporation’s insurance policies, including the amount of any deductibles and how much of it could be charged back to owners.

If any of this information changes, the condo corporation must update the owners through what is called an Information Certificate Update.

Information Certificate Updates must be sent to owners within 30 days of any change to the insurance policy deductible or the amount that could be charged back to an owner.