Repairs and maintenance
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.
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.
Determining Responsibility for Insurance Deductibles
After determining whether the insurance policy covers the damage, another consideration is determining who is responsible for paying the insurance deductible, if any. Section 105 of the Act states that the condo corporation is responsible for paying the insurance deductible after damage has occurred. If so, the deductible amount is to be included as part of the common expense fees.
However, there can be instances where an individual owner may be responsible for paying the lesser of the entire deductible or the cost of the repair. According to section 105 of the Condo Act, this would be possible if:
- An owner, occupant, or guest through an act or negligence causes the damage; and
- The damage is to the individual owner’s unit.
A condo corporation may also have an insurance deductible by-law which expands the circumstances under which the deductible amounts may be added to the common expenses of the individual owner. Most commonly, insurance deductible by-laws will expand the circumstances to include the units of other owners and the common elements of the condo corporation.