Defining “Repair”

A recent decision of the Ontario Superior Court, Middlesex Condominium Corp. No. 195 v Sunbelt, again highlights the importance of defining “repair”, and particularly distinguishing between “repair” and “maintenance”.

The MCC 195 case dealt with two issues:

1. Responsibility for certain hydro charges; and
2. Responsibility for window repairs.

In this blog post, I will focus on the second issue – window repairs. In the MCC 195 case, the windows of the commercial units needed replacement (due to a building defect), and the condominium corporation asserted that this was the responsibility of the commercial unit owners.

MCC 195’s declaration says that the commercial owners are obligated to repair and maintain their windows – even though the windows are part of the common elements. However, the Court held that these window repairs were the responsibility of the condominium corporation because the windows were not designated for the exclusive use of the commercial owners. The Court said:

“[Section 91 of the Condominium Act] does not grant a condominium corporation the authority to impose on a unit owner the obligation to repair common elements after damage, except for common elements designated for the exclusive use of an owner.”

Here’s the bottom line:

• Under the current Condominium Act, a condominium declaration can say that owners must maintain any part of the common elements.
• However, under the current Condominium Act, a condominium declaration can only say that owners must repair their exclusive-use common elements. The MCC 195 case also tells us that this applies only to specifically designated exclusive-use common elements.

Thankfully, this issue is eliminated by the amendments to the Condominium Act, which are expected to come into force sometime in 2017. Under the amendments, Section 91 will allow a declaration to say that owners must maintain or repair any part of the common elements. So, that’s a good thing.

However, there’s another important – and possibly problematic – change contained in the amendments to the Act. The meaning of “repair” will change. Some work that is currently “maintenance” will become “repair” when the amendments come into force.

Currently, Section 90 of the Act says that the obligation to maintain “includes the obligation to repair after normal wear and tear”. In my view, this makes good sense. When something fails at the end of its normal life (i.e. after normal wear and tear), the required work sounds to me like “maintenance”. However, this is eliminated by the amendments to the Act, which introduce the following new definition of repair:

“’repair’ means to repair or replace after normal wear and tear, damage or failure.”

So, when the amendments to the Act come into force, what is now “maintenance” may soon be “repair”!

In most cases, this change in the meaning of the terms “maintenance” and “repair” won’t have any ramifications. But this change will matter in cases where responsibilities to maintain and repair a particular feature of the property are “split” or “divided” between the corporation and the owners. In those cases, the responsibilities may be about to change!

Need further clarification? Get in touch with our Condominium Law Group today.