Article

When Is a Unit Repair Part of a Common Element Repair?

July 19, 2022 | James Davidson,

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Common Elements, Construction, Maintenance and Repair, Repair and Maintenance

Unfortunately, there is no absolute or definitive answer to this question.  As with many legal questions, the answer in a particular case will depend upon the specific facts and circumstances.  But here are some principles that I think may provide some general guidance:

  1. If a condominium corporation is required to damage a unit in order to complete common element work, the corporation is normally obligated to reinstate the unit to its original construction (not including any unit modifications made following the original construction).  [The original construction is generally illustrated on the architectural / structural drawings which are part of the condominium description.  And the idea is that the ownership as a whole “accepts the risk of having to reinstate the original construction” (if damaged by work of the condominium corporation) – but not the risk of having to reinstate upgrades to the original construction.]
  2. Unit work is sometimes necessary because of work on the common elements, but for other reasons (not because of damage during work on the common elements).  For example, mechanical equipment that is part of a unit may sometimes require replacement so as to remain compatible with common element systems that need replacement.   In such cases, even though the unit work may be “prompted by a common element condition”, the unit work will not necessarily be the corporation’s responsibility.  The overall project may simply be “one project that is part work on the common elements and part work on the units”.
  3. On the other hand, if work on a unit is necessary because of the corporation’s negligence, this would (in most cases) be the corporation’s responsibility.

In summary, in each case it’s a matter of considering the particular facts and circumstances, and the task is to try to determine whether or not any required unit work should be considered as “part of common element work” or instead simply as required work on the unit. 

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