In Kelowna B.C., Lloyd Guenther, who purchased a condo with his
wife in 2003, was so frustrated with the Strata Council's
inaction in addressing water leaks on the owners enclosed balconies
and the building envelope issues which he felt were caused by the
enclosures, that he applied to the Supreme Court of
B.C.1 to have an administrator appointed.
All but one of the 41 units in this three-storey building, had
enclosed balconies that had been constructed in the 80's. It
was when roof repairs were carried out in 1998, that complaints
about water problems on the balconies first started.
The Strata Council had carried out various investigations of the
building envelope and took the position that the owners were
responsible for any leaking caused by their balcony enclosures.
They concluded that no further investigations needed to be done on
the building envelope.
The Court held that since no by-law was enacted which would
shift the responsibility of maintenance and repairs of the balcony
enclosures to the owners (specific to B.C. legislation), it found
that the Strata Council was, therefore, responsible for the leaks
caused to the enclosed balconies.
Justice Barrow in determining whether the Strata Council
breached its duty to properly address the building envelope issue,
set out the following factors that he considered to be key in
determining whether the Strata Council had acted
likelihood of the need to repair
cost of further investigation
gravity of harm sought to be avoided or mitigated by
investigating or remedying any discovered problems
Based on the steps that the Strata Council had taken, the court
did not find that the Strata Council had breached its duty.
The Court also found that there was no need to appoint an
administrator as the parties would now know their respective
In Ontario, balcony enclosures, are usually part of a unit
owner's exclusive use common element and are considered
alterations to the common elements that require a Section
982 indemnity agreement. Section 98 requires that these
agreements be registered on title. The purpose of having these
agreements in place is so that maintenance and repair
responsibilities are clearly defined, that insurance obligations
are specified, ensuring construction guidelines are in place and
dealing with indemnification should damage occur. Where owners have
constructed balcony enclosures prior to the date that Section 98
agreements were required (May 2001), boards of directors are still
taking steps to get Section 98 agreements signed in order to avoid
disputes down the road should the alteration require maintenance,
repairs, or further changes. It is recommended that condominium
corporations proceed in this manner to avoid costly disputes and
It is unfortunate that this matter ended up before the courts at
substantial costs to the owners. Although the lawsuit may have
resulted in clarification as to the responsibilities for
maintenance and repairs, the period of time from when the conflict
arose to the decision date, impacted on all the
residents3, many who were seniors living on fixed
incomes and who were troubled by the threat of increased
maintenance fees and special assessments.
(Originally published on March 22, 2011 on the Condo Reporter
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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