My next-door neighbour had the outer pane of his window shattered by a rock. The condominium corporation replaced the window and billed my neighbour, claiming the replacement was the obligation of the unit owner. My neighbour pointed out that, according to the condo declaration, the window was a common element and the obligation of the condominium corporation. Management then advised that the original window was replaced with a double-paned version by a previous owner and that makes it the responsibility of the current owner. If there was no agreement between the previous owner and the condo corp. relating to the window change, as required by Section 98 of the Condominium Act, does not the replacement window remain a common element and up to the corporation to replace?
I agree with you. The replaced window remains a common element and the repair — or replacement — of that window remains the obligation of the corporation, unless a Section 98 Agreement transfers the obligation to the unit owner. A replaced outer window is a common element and its repair is the obligation of the condo corp., writes Gerry Hyman.
Under the Condominium Act, a declaration may alter the maintenance or repair obligations of unit owners and the corporation but cannot make unit owners responsible for repairs to the common elements.
However, a recent amendment to the Act — which has not yet been proclaimed — includes a declaration that may make unit owners responsible for repairs to the common elements.
Our condominium rules state that an owner who rents out their unit will be charged $ 250 per month as an ongoing, non-refundable security deposit. The purpose is to render the unit owner responsible for the cost of repairing damage to the common elements caused by a tenant, rather than all of the owners being responsible for such costs as part of their contribution to the corporation’s common expenses. Is this permissible?
A rule must not be clearly unreasonable. A rule rendering a unit owner responsible for a monthly, non-refundable payment — notwithstanding that the owner’s tenant has not and may never cause damage to the common elements — would appear to be clearly unreasonable.
The corporation might consider amending the rule by deleting the requirement for the monthly payment. But it could add a statement that a unit owner will be responsible for all costs incurred by the corporation in regard to damage caused to another unit, or to the common elements, by the act or neglect of the unit owner or an occupant of the owner’s unit (including a tenant). The statement would include that such costs may be added to the unit owner’s contribution to the condominium’s common expenses.
Gerry Hyman is a former president of the Canadian Condominium Institute and contributor for the Star. Reach him on email: email@example.com