Special Provisions Respecting Warranties in Condominium Act

Section 96 of the Condominium Act, 1998, is a special statutory provision dealing with warranties in the condominium setting. It includes the following:

Section 96 (1):  “All warranties given with respect to work and materials furnished for a unit shall be for the benefit of an owner.”

Section 96 (3): “All warranties given with respect to work and materials furnished for the common elements shall be for the benefit of the corporation.”

These provisions can be extremely important when contemplating claims for breach of warranty (in the condominium setting). Here are some things to bear in mind:

• The Courts have said that the above provisions can also apply to implied warranties. So, for instance, a condominium corporation may have the benefit of common law implied warranties that may apply to the original purchase of a residential unit.

• The above provisions aren’t specific about the person to whom the warranty is “given”, so:
  • a condominium corporation may have the benefit of any express or implied warranties (with respect to the common elements) given to one or more of the owners, even if those owners no longer own units in the condominium.
  • the condominium corporation may also have the benefit of any express or implied warranties (with respecting to the common elements) given to any other party, such as the developer, builder, or a contractor or sub-contractor involved in work on the property.
• As a result, if a condominium corporation discovers a common element defect, the condominium corporation may be able to consider a claim for breach of warranty (in addition to a claim for negligence) even in cases where the condominium corporation never had any contract with the defendant.