REPAIR AND MAINTENANCEAND THE STANDARD UNIT

Condominium Act, 1998, s. 89 - 92 and 96 Blaine Fedson, B.A., LL.B.

NOTE: For a hyperlinked version of this article, go to Articles under Bookmarks in the Annotated Condominium Act.

Introduction
Among the most common duties that arise in managing condominiums are those of maintenance and repair. While condominium corporations are obliged to repair and maintain some parts of the property, the individual owners themselves may be obliged to repair and maintain other parts of the property. Accordingly, in discharging these duties to repair and maintain, corporations and their property managers must know whether the duty applies to the corporation or to an owner in each particular case.

Duties To Repair And Maintain Under the Act

The duties to repair and maintain are set out in sections 89 through 92 of the new Act. These sections provide that condominium corporations are obliged to repair the units and common elements and to maintain the common elements, while the owners are obliged to maintain their own units.

Duties to Repair and Maintain May Be Altered By The Declaration

However, section 91 of the Act provides that all but one of these duties can be transferred between the corporation and the owners by provisions set out in the declaration of the condominium corporation, as follows: Duties that may be transferred by the declaration from the corporation to an owner: 1. The corporations duty to repair the units after damage may be transferred by the declaration to the owners with respect to their own units; 2. The corporations duty to repair exclusive use common elements after damage may be transferred by the declaration to the owners who have the exclusive use of those parts of the common elements; 3. The corporations duty to maintain the common elements (or any part of them) may be transferred by the declaration to the owners; 4. The corporations duty to maintain exclusive use common elements

may be transferred by the declaration to the owners who have the exclusive use of those parts of the common elements;

Duties that may be transferred by the declaration from the owners to the corporation: The owners duty to maintain their units (or any part of them) may be transferred to the corporation by the declaration.

Duty to repair that CANNOT be transferred by the declaration: The declaration cannot alter the corporations obligation to repair the common elements after damage (except exclusive use common elements).

The foregoing is summarized in the following tables:

DECLARATION MAY TRANSFER THE DUTY TO REPAIR BY CORPORATION Unit (not improvements) Exclusive Use Common Elements Common Elements (Not Excl. Use) BY OWNER (duty cannot be transferred)

DECLARATION MAY TRANSFER THE DUTY TO MAINTAIN BY CORPORATION BY OWNER Exclusive Use Common Elements Common Elements (Not Excl. Use) Units (or parts thereof)

Check the Declaration

Accordingly, when determining whether it is the corporation or an owner that is obliged to maintain or repair the property, the property manager must always check to see whether the declaration has altered the maintenance and repair obligations as set out in the Act, except only in the case of repair to the common elements (as opposed to exclusive use common elements).

Owners Failure To Repair and Maintain

Section 92 of the Act provides that where an owner is obliged to repair or maintain but fails to do so, then the corporation shall /may do the work and charge the owner as set out in the following table:
WHERE AN OWNER FAILS TO REPAIR OR MAINTAIN Re repair Condo MUST do so. Re maintenance of C.E.s Condo may do so. Re maintenance of Unit Condo may do so, but ONLY if: ! potential risk of damage to the property or assets, or ! potential risk of personal injury to persons on the property

In each case the cost shall be added to the common expenses of the owner.

Improvements: The Exception To The Duty To Repair

The obligation to repair units after damage specifically does not include the obligation to repair after damage improvements made to a unit. (The only exception to this exception applies with respect to improvements made before the declaration is registered under the old legislation, and then only where a standard unit by-law does not alter that duty.)

Improvements: The Standard Unit

To determine the responsibility for repairing improvements after damage and insuring them, corporations may (and declarants shall) create a standard unit to refer to.

Standard Unit
89 (3) For the purpose of this section, the question of what constitutes an improvement to a unit shall be determined by reference to a standard unit for the class of unit to which the unit belongs. (4) A standard unit for the class of unit to which the unit belongs shall be, (a) the standard unit described in a by-law made under clause 56(1) (h), if the board has made a by-law under that clause; (b) the standard unit described in the schedule mentioned in clause 43 (5) (h), if the board has not made a by-law under clause 56(1) (h). (5) A corporation that was created before the day this section comes

into force and that had the obligation of repairing after damage improvements made to a unit before the registration of the declaration and description shall continue to have the obligation unless it has, by bylaw, established what constitutes a standard unit for the class of unit to which the unit belongs.

Standard Unit Schedule

Declarants registering new corporations under the Act will be required to prepare and deliver to the Board within 30 days of turnover: 43. (5)(h): a schedule setting out what constitutes a standard unit for each class of unit that the declarant specifies for the purpose of determining the responsibility for repairing improvements after damage and insuring them;

Standard Unit By-law

Condominium corporations may also pass by-laws: 56. (1) (h): to establish what constitutes a standard unit for each class of unit specified in the by-law for the purpose of determining the responsibility for repairing improvements after damage and insuring them;

By-law Overrules Schedule

This power that is given to corporations to pass by-laws to establish standard units overrides any standard unit established by the declarant. Further, corporations registered under the old Act can also pass by-laws to establish their own standard units.

Query Re Maintenance
While the legislature in its wisdom originally saw fit to relieve corporations of the obligation to repair improvements, and would apparently now give corporations the flexibility to determine on their own exactly what shall constitute an improvement by way of a Standard Unit by-law, it is not clear why the legislature did not give corporations the same flexibility with respect to maintenance.

Query Re Extent of Improvements

How far can a corporation go in designating improvements as part of a Standard Unit in a bylaw? Can it exclude from its responsibilities to repair and insure parts of units that are in fact original standard installations and not actual improvements by simply

designating those parts to be improvements in a standard unit by-law? If so, are there any limitations as to how much of the unit can be excluded, or can the whole unit be excluded and rendered an improvement for repair and insurance purposes? While the Act does not answer these questions specifically, bear in mind that all By-Laws must be reasonable. In addition, condominium corporations should carefully consider the possible consequences of designating improvements in a standard unit by-law, as it is arguable that neither the corporation nor the owners would have a duty to repair improvements based on sub-section 89 (2), notwithstanding the wording of s.56 (1)(h) of the Act, from which a reader may infer the contrary. Further, while a similar argument could be made about the duty to insure, just on a practical basis consider the administrative difficulty of ensuring that all owners maintain adequate insurance to cover improvements, and the possible consequence of their failure to do so.

Repair vs. Maintenance

The definition of repair after damage expressly includes repair and replacement after failure. The definition of maintenance expressly includes repair after normal wear and tear. These overlapping definitions that each include repair are illustrated below:

REPAIR
Includes: repair or replacement after failure

vs.

MAINTENANCE
Includes: repair after normal wear and tear

Failure vs. Maintenance

Accordingly, how does one distinguish repair and replace after failure, which is a repair issue, from repair after normal wear and tear, which is a maintenance issue? For example, one can imagine a situation where a pipe located within a unit has burst or developed pin-holes which results in a dispute between the corporation and the owner as to who should fix the pipe. The owner might argue that the corporation should repair it because it has failed and must be replaced. On the other hand the corporation might argue that this is a maintenance issue that requires the owner to repair after normal wear and tear. Perhaps one possible approach to resolve this conflict would be to consider the life expectancy of the object. If the object has failed prematurely, then it is a repair issue. If the object has fulfilled its life expectancy and has failed as a result of normal wear and tear, then it is a maintenance issue.

Warranties
Finally, in fulfilling the duties to repair and maintain, corporations and their property

managers may be required to determine whether any warranties apply. Pursuant to Section 96 of the Act, warranties for workmanship and material have been divided between owners and the corporation as follows: (i) (ii) warranties with respect to units are for the benefit of owners; corporations may enforce warranties with respect to units, but only if the corporation does work on behalf of the owner under section 92; warranties with respect to common elements are for the benefit of the corporation.

(iii)

Warranty When Work is Done for an Owner

Unfortunately, it would appear based on the foregoing that corporations which are obliged to repair units under s. 89 of the Act or which sue for damage to units under s. 23 (1) (a) of the Act may not be entitled to claim the benefit of any unit warranties for workmanship and material unless the corporation has done the work to undertake the repair on behalf of the owner as required by s. 92 (1) and (3). At least it is not clear what the legislature had in mind when it changed the wording of the previous legislation that seemed to work just fine.
Deacon, Spears, Fedson & Montizambert, 2001, all rights reserved.