Canada: Too Closed For Comfort?

It is inevitable that, from time to time, a condominium complex will experience an elevator shutdown, swimming pool closure, or restricted garage access. These can happen because of a scheduled investigation or repair, or an emergency situation. At times like these, some owners may complain that that they have paid their maintenance fees and therefore expect these items to be in operation at all times or repaired immediately.

This position treats the condominium corporation as a "landlord" and the maintenance fees as "rent". If this were an apartment building, a resident may very well have cause for indignation as well as recourse to the remedies provided under the Ontario Residential Tenancies Act. However, when a unit owner takes this position, he or she loses sight of the fact that the condominium community is actually an aggregate of individual homeowners. While it is true that the manager is hired to manage the building and the board of directors oversees the manager, the board members are volunteers bound by a number of factors beyond their control. Repairs can be delayed for various reasons including the following:

Ongoing investigations - No two condominium buildings are exactly alike and it can take time to isolate the cause of a problem and determine the best way to fix it. For example, some corporations will attempt multiple repairs over the course of months or even years before successfully stopping a leak coming through the building envelope.

Urgency/financial constraints - Most boards would love to tackle all of their corporations' repair projects in the coming year, both urgent and discretionary. Unfortunately this is not always possible, even where a corporation has been careful to keep its reserve fund properly funded. Unexpected repairs and escalating construction costs mean that boards have to prioritize the projects that are most important to the well-being of the corporation and defer the rest to a later date. Otherwise, common expenses could spiral out of control, which is sure to create dissatisfaction.

Bidding-tendering processes - Complex projects require an architect or engineer to prepare detailed drawings and specifications as part of a tender package before a corporation can even approach contractors for pricing or seek tenders for the work. This takes time. 

Lack of available contractors – Once a bid package is prepared and contractors are approached, the board may be surprised to learn that it is difficult to find someone to do the work. It could be that there are a limited number of qualified contractors who are in demand to do a specialized type of work. It could be that the work required is seasonal in nature and every other condominium corporation wants to do the work at the same time. It could even be that the work is too risky or experimental for it to be worth the contractor's time and effort.  

Seasonal restrictions - Even if a contractor is available, certain repair methods and materials cannot be used during extreme temperatures or other adverse weather conditions.

An owner who says, "I would have had this fixed in a week," doesn't appreciate the unique challenges of condominium administration. That person might be happier in a house.

An interesting subset of frustration for owners of new units arises when the common elements show signs of construction deficiencies, such as a leaking building envelope, ponding on a balcony, or noise from mechanical equipment, all of which may interfere with their ability to enjoy living in their units. These owners will often pressure the board and property management to repair these deficiencies, on the basis that the condominium corporation is responsible for the maintenance and repair of the common elements.

However, if a deficiency has been listed on a year one and/or year two performance audit and submitted to Tarion as part of the Condominium Common Elements Claims process, then the corporation cannot carry out its own repairs without jeopardizing Tarion coverage. This can be maddening for a unit owner who cannot fully enjoy her unit or the common elements until the builder or Tarion remedies the issue, which can sometimes be two or three years after occupancy. However, it is not prudent for a new corporation to spend its own money to repair something for which it is entitled to a warranty repair. In circumstances where the deficiency is so serious that it is nearly impossible to live in a unit, then the condominium corporation should request an "emergency conciliation" of the issue or emergency permission from Tarion to repair the problem before doing so. If a condominium corporation repairs the common elements and the deficiency is covered by Tarion, it must have the permission of Tarion or else the warranty will be voided and the corporation will not receive compensation for any monies it has spent to remedy the problem.

Facilities closures and on-site interruptions are inevitable in condominiums, especially in older buildings. Information on current construction projects should be provided to owners on a regular basis. Where a project is taking longer than anticipated, the board should consider holding an information meeting at which owners can have the chance to ask questions of the board and the corporation's engineers and contractors. As with so many things in the condominium community, clear communication between the board and owners is the best way to avoid frustration and misunderstanding.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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