What Is Reasonable When an Owner Complains about the Common Elements?

Condominiums are typically obligated to repair and maintain the common elements. The common elements, particularly in high-rise buildings, can often include sophisticated equipment with complex repair and maintenance requirements (especially as buildings age). So what happens when an owner alleges that the condominium hasn’t complied with its repair and maintenance obligations?

The recent decision from the Ontario Court of Appeal in Mohamoud v Carleton Condominium Corporation No. 25¸ (upholding the lower Court’s decision) is an important reminder of the standards that apply to Boards in these situations. This blog will focus on the Court’s comments respecting obligations for common element repair and maintenance, but we’ll also be posting a series of further blogs on other topics covered by the decision.

On this issue, the important take away is that assessing whether a condominium has complied with its repair and maintenance obligations is going to depend on the circumstances of each matter, but ultimately the standard to be met is one of reasonableness, and not necessarily perfection.

This sounds easy, right? A condominium just needs to act reasonably. But putting this into practice can be difficult when faced with owner complaints respecting complex machinery, problems that don’t lend themselves to simple solutions, and having to balance the interests of the individual complainant with the interests of all other owners.

Here’s what happened in the Mohamoud case. In 2014, the owner complained about noise which she believed was coming from the exhaust fans located on the roof above her penthouse unit. The condominium took several measures to ensure the fans were working properly and to try to address the noise. But the exact source of the noise was not easily pinpointed.

Despite the condominium’s efforts, the owner sued, demanding that the condominium replace two fans above her unit. The owner alleged that the noise was coming from those fans, and that this was sufficient to show that the condominium had failed to properly repair and maintain them as required under sections 89 and 90 of the Condominium Act.

The Court reviewed the repair and maintenance steps the condominium had taken, which included the following:

• Beyond the contract for quarterly inspection/maintenance of the rooftop fans, the Corporation’s contractor made several additional special inspections of the roof and fans between 2014 and 2016 specifically to attempt to identify the source of the noise.

•  In June 2016, the condominium’s contractor exchanged the blower assemblies to install quieter assemblies in the fans above the owner’s unit.

• The Corporation retained an expert sound engineer to work with its contractor to try to locate the source of the noise between 2016 and 2018. When a specific fan was shut off as part of this testing the owner reported that the noise “completely disappeared” so the condominium replaced that specific fan. But the owner then reported that the noise persisted.

• In September 2018, the condominium retained mechanical engineers to again inspect the two fans directly above the owner’s unit and the engineer concluded that neither were particularly noisy. The engineer said that one of the fans would benefit from maintenance to the motor, which the condominium completed right away.

• When the owner reported that the noise still persisted, the condominium replaced the two further fans (located directly above the owner’s unit), even though the condominium’s expert did not think that the fans required replacement or were the source of the noise.

• After this second fan replacement the owner initially reported that the noise persisted, but eventually reported that the noise was at an acceptable level.

Ultimately, the Court concluded that the condominium had, in fact, complied with its statutory duty to repair and maintain the fans.

The Court found that there was no evidence to directly link the noise the owner complained of to any failure on the condominium’s part to repair and maintain the fans. In other words, even though the owner believed that the noise was coming from the fans above her unit, there was no objective evidence to conclude that the fans were the source of the noise, or more importantly that the noise was a result of a failure to repair and maintain them, given the extensive steps the condominium had taken.

The steps required of a condominium responding to this type of complaint will vary from case to case. In the Mohamoud case, the condominium ultimately took all possible steps, not just reasonable steps in the circumstances, in case it was at all possible to resolve the owner’s complex, persistent noise complaint. But in most cases, a condominium will have acted reasonably by taking the following steps:

• Responding seriously to the owner without undue delay when the complaint is received;

• When there is any doubt about the source of the problem, engaging the appropriate professionals to diligently and systematically investigate the cause of the complaint; and

• Carrying out any reasonable repair or maintenance recommendations from those professionals.

The Mohamoud case is an important reminder that even where condominiums have complied with their statutory repair and maintenance duties, problems may still persist. But as the Court concluded, while a condominium has an obligation to repair and maintain the common elements, it is not an insurer and does not have a duty to address every problem reported by a unit owner, regardless of its cause.