When is a Condominium Corporation Responsible for an Owner’s Alternate Accommodation?

In the case of Benmergui v. YRSCC No. 1510, the Applicant owner sought urgent interim relief (claiming a need for alternate accommodation) after experiencing repeated sewage backups in her newly acquired condominium. The owner alleged that YRSCC 1510 had not adequately addressed the sewage back-up issue (and the resulting unacceptable condition of the unit). 

The Court held that the condominium corporation had not acted reasonably and with proper haste to address the sewage backups and was in violation of Section 117 of the Condominium Act. The Court therefore ordered the condominium corporation to cover the cost of the Applicant’s continuing required alternate accommodation. The Court said:

I accept the respondent (the condominium corporation) is not to be held to a standard of perfection. An assessment of reasonableness depends on the facts. In this case, there is no doubt the unit is uninhabitable. It poses a danger to the applicant’s health. She cannot live there. She purchased and pays the mortgage on a home in which she cannot live. She cannot instigate or oversee the necessary repairs by herself. She must rely on the respondent to do that. Certainly by the time the third sewage backup occurred in August 2024, the respondent ought to have engaged in a “full court press” to determine the cause of the backups. It did not. It moved in a manner and at a speed that was more consistent with a situation that had created an annoyance than one that created a danger to health and a recurrent cause of property damage.

In my view, in these circumstances, fair and equitable relief is for the corporation to pay for the applicant’s comparable alternate accommodation until the sewage issues affecting her unit are resolved. The uncontested evidence is that the applicant used up her insurance coverage for a short-term rental in the summer. She made temporary arrangements with a family member for the months following the expiry of that coverage, but that arrangement is no longer available to her. Her evidence demonstrates that she has been unable to locate a short-term rental and that she is unable for financial reasons, given her current constraints, to enter into a long-term lease.

So in summary: If a condominium corporation fails to fulfill its reasonable repair obligations, so as to maintain safe conditions (in accordance with the Condominium Act), this case tells us that the Corporation can be responsible for the owner’s resulting need for alternate accommodation.

However, my reading of this decision is that a condominium corporation is generally not responsible for an owner’s alternate accommodation as long as the corporation is meeting its obligations (including the obligation to attend to required repairs with reasonable haste).

I also note that insurance arranged by a condominium corporation (on its own behalf and on behalf of the owners), generally does not provide coverage for any required alternate accommodation (for an owner) during insured repairs.

The Benmergui v. YRSCC No. 1510 case appears to me to confirm the general principle that arranging for any required alternate accommodation is the responsibility of the owner unless and until the corporation fails to take reasonable steps to fulfill the corporation’s obligations. [In the case of insured damage, the owner of course may have unit insurance that will provide coverage for any required alternate accommodation.]

Before concluding, I add the following note: I think there is a possible argument that removing an owner from a unit may sometimes be a necessary part of a common element repair. But again: This case appears to say that alternate accommodation (for an owner) is the primary responsibility of the owner, unless and until the corporation fails to meet its obligations.

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