Damage to a Unit: Who Is Responsible for Repairs and Costs?

The Board of Directors has requested that this notice be distributed to owners for future reference. It provides a statement based on recent legal advice that explains how the CCC 067 Board determines owner versus condominium responsibilities for repairs and costs relating to the interior of your home.

April 2020

The Basics

Damage to a home can result from a wide range of causes including actions of a resident, failure of a common element such as the roof, or events of nature such as a flood. In a condominium, responsibility for repairs and costs is determined by three basic considerations:

1. What Does the Declaration Say? The Declaration is provided to all owners upon purchase. It contains a detailed description of the common element, what belongs to the individual owner and the precise boundary between the two (see Annex 1). The Corporation is generally responsible for maintenance and repairs to the common element while owners are responsible for maintenance and repairs to the interior of their homes.

2. What belongs to the Standard Unit? The purpose of the standard unit description (see Bethune Condominium By-law Number 8) is to determine what is covered by the condominium’s insurance policy. This policy normally covers all the common elements set out in the declaration, and the standard unit at the time of construction. It does not cover the contents of your home or modifications that you or previous owners have made to the standard unit. These are covered by the condominium homeowners’ insurance policy (which CCC 067 advises all homeowners to obtain).

3. Owner modifications. Owners may make modifications to their unit or yards and walkways, upon receiving authorization from the Condominium Board of Directors. By-law 12 lists the permitted modifications. Owners are responsible for the maintenance and repair of modifications that have been made to their unit, either by previous owners or by themselves.

How Do The Basics Guide Decisions?

When repairs are required, the Corporation accepts responsibility for all repairs to the common element. However, if the repairs are required because of damage caused by an owner, the Board may charge the cost of repairs back to that owner.

The Board also accepts responsibility for repairs to the standard unit IF the damage is covered by the Corporation’s insurance policy. If the Corporation determines that the damage is partly or wholly a result of the conduct of residents, it may charge the cost of the insurance deductible back to the owner if an insurance claim is made. The Corporation may or may not choose to make an insurance claim but, either way, the insurance policy provides a guide for what the corporation will repair within the interior of your home.

Not all kinds of damage are insurable. The Corporation’s insurance policy contains a list of exclusions. For example, if the damage to the standard unit results from a botched repair by the resident, it is not covered by the Corporation’s insurance and therefore costs will not be covered by the Condominium. Where repairs are not insurable by the Corporation, the Declaration determines responsibility, which belongs to the owner for most items within a home.

As noted above, owners are responsible for the maintenance and repair of owner modifications, past and present. The status certificate provided to the purchaser of a home lists the owner modifications that are on record with the Condominium, but it also states that owners may have made modifications of which the Corporation is not aware. Ultimately, the seller (not the Corporation) is responsible for informing the purchaser of all encumbrances upon the property, including modifications that the purchaser will need to maintain.

What if Damages to a Home Result From Common Element Failure?

With respect to a common element failure, the following principle has been expressed by the Courts:

A condominium corporation is not responsible for unit damage simply because the damage results from a failure of the common elements. The condominium corporation is only responsible if the damage results from the corporation’s failure to make a reasonable effort to detect and repair deficiencies in the common element that have resulted in damage within a unit. In other words, the corporation is only responsible if the corporation could and should have prevented the damage.

A condominium is not liable for unit damage if:

• the corporation has implemented reasonable periodic maintenance programs (for the common elements); and

• the corporation otherwise takes reasonable steps, with reasonable haste, to fix common element problems once they come to the corporation’s attention.

What if Damages to the Common Element Result from an Owner’s Failure to Maintain Their Home?

Damage to a common element or costs to the Corporation resulting from an owner’s failure to look after their unit are unlikely, but they could occur. In general, if the Corporation incurs expenses that are attributable to actions taken by an individual owner, the Corporation will undertake to recover expenses subject to it’s legal capacity to do so.

What About Cross-Over Systems?

Door bells, dryer vents, exterior taps and other elements may be part of a system that crosses the boundaries between the common element and the owner element. The Corporation accepts responsibility for exterior door-bell buttons, lights, electrical plugs and taps. However, owners are responsible for interior elements such as the door-bell chime mechanism, light and plug switches, electrical plugs, related interior wiring, or interior water pipes and plumbing. The Declaration describes the precise dividing line between “exterior,” and “interior.”

Diagnosing the Problem in a Cross-Over System.

If a problem occurs in a cross-over system, it may not be obvious where the source of the problem is located. In these cases:

(1) The owner may choose to treat the problem as an owner responsibility and contact a private service provider or make repairs directly. If the problem is resolved, the Corporation need not be involved. If, however, the owner determines that the source of the problem is a common element, then the Property Manager should be contacted. If the Corporation’s contractor confirms the common element problem, it will be addressed by the Corporation. The Corporation may, at its discretion, also accept charges for the cost of the service call by the private contractor (but not charges for any work done by the private contractor) where it believes that the owner’s initial decision to contact a private contractor was reasonable.

OR

(2) The owner may choose to treat the problem as a condominium responsibility. In this event, the first step is to contact the Property Manager. If the Corporation’s contractor confirms that the source of the problem is a common element, it will be repaired by the Corporation at no cost to the owner unless the problem results from owner negligence. If the Corporation’s contractor determines that the source of the problem is an owner responsibility, it will only be repaired with the consent of the owner (with costs charged back to the owner). If, the owner declines repair, the cost of the service call and diagnosis will be charged back to the owner because a common element failure is not involved.

Damage from Foundation Cracks and Leaks.

The corporation will normally assume responsibility for foundation repairs, and for restoration of the interior to standard unit specifications.

The Corporation makes a reasonable effort to detect foundation problems by performing periodic exterior foundation inspections. However foundation failures often become evident only when leaks occur and are reported by the owner. If the Corporation’s engineer or a qualified contractor indicate that unreported failures have contributed to damage, the Corporation may require cost-sharing of repairs by the owner. If, on the other hand, the Corporation believes that maintenance by the Corporation has not met the test of “reasonable effort to detect and repair deficiencies in the common element,” it may assume costs for repair of damage that goes beyond the standard unit and affects owner modifications in the interior of the home.

Damage from Roof Leaks or Interior Moisture.

Responsibility for repairs depends upon the cause of the leak or moisture, as determined by the Corporation’s engineer or a qualified contractor. If interior damage results from a common element failure (roof deficiencies or attic insulation deficiencies), the corporation assumes responsibility for restoration of the interior to standard unit specifications. On the other hand, owners will be held responsible for moisture damage resulting from failure to use bathroom ventilation fans or resulting from the failure to report moisture issues in a timely way.

The Corporation performs periodic exterior roof inspections and lifespan assessments, and maintains a proactive replacement program. However roof failures normally become evident only when leaks occur and are reported by the owner. If the Corporation’s engineer or a qualified contractor indicate that unreported failures have contributed to damage, the Corporation may require cost-sharing of repairs by the owner. If, on the other hand, the Corporation believes that it has not met the test of “reasonable effort to detect and repair deficiencies in the common element,” it may assume costs for repair of damage going beyond the standard unit, and affecting owner modifications in the interior of the home.

Sewer Back-ups

Responsibility for repairs depends upon the cause of the back-up, if that can be determined by the Corporation’s engineer or a qualified contractor. If a back-up is attributed to misuse of a unit’s plumbing, the condominium may seek to recover costs from the owner. In the absence of information locating responsibility with a resident, the Corporation assumes responsibility for repair, including restoration of the interior to standard unit specifications.

The Corporation maintains a proactive program involving periodic flushing of sewer lines and video inspection that is based on the advice of our engineer and a specialized contractor. Starting in 2020, the Corporation has expanded the periodic flushing program to include the inspection of back-flow prevention valves that were previously installed in basement drains by many owners. The Corporation now installs back-flow valves where the periodic inspection has determined that this is necessary.

Owners may wish, for their own additional protection, to inspect the valves between the periodic inspections by the Corporation because they can be affected by material accumulating in the floor drains. Advice about how to inspect them is available on request from the Property Manager. If a qualified contractor performs the inspection and determines that replacement is necessary, the Corporation will normally assume the cost of replacement (although it may, at its discretion, perform its own inspection before agreeing to do this). If the Corporation determines that its inspection program has not met the test of “reasonable effort to detect and repair deficiencies in the common element,” it may assume costs for repair of damage going beyond the standard unit, and affecting owner modifications in the interior of the home. If, however, damage resulting from a valve failure is determined by the Corporation’s contractor to be the result of an accumulation of materials in the floor drain, the Corporation may decline to assume costs of repairs that go beyond the restoration of the standard unit.

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It is the Board of Directors’ intention to follow the Declaration and these principles when making repair decisions. They provide a basis for treating owners fairly and consistently, and managing the Corporation’s budget in the long-term interest of all owners.

Should you have any questions regarding this matter, please feel free to contact your property manager.

Annex 1 (Declaration, Schedule “C”)

The boundaries of each unit shall be as follows:

A. Horizontally:

1. The unfinished backside surface of all the drywall or interior surface of the concrete of any wall separating a unit from another unit, or, where applicable, of any exterior wall.

2. The unfinished exterior surfaces of all windows and the unfinished exterior surfaces of the doors leading out of the unit in their fully enclosed positions.

3. In the vicinity of the flues, the interior or unit side of the brick.

4. In the vicinity of the fireplaces, the interior surfaces of the concrete of any wall separating a unit from another unit, where applicable, of any exterior wall.

B. Vertically:

1. The unfinished upper surface of the concrete floor in the basement and in the garage and the extension thereof in the area of the fireplace support.

2. The unfinished backside surface of the drywall on the ceiling of the garage and the ceiling of the second floor.

3. The unfinished upper surface of the plywood floor sheathing on the floor of any second floor cantilever.