Update on Previous Post – Fight Fire with Fire: Seeking Court Orders to Amend the Declaration

brown beside fireplace near brown wicker basket

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Last year we posted about a case where a condominium commenced an application to the Superior Court of Justice for an order amending its declaration. The condominium wanted amendments to its declaration because of a repair and maintenance issue with the fireplaces in the building. A group of owners with fireplaces filed their own application seeking to have the chimney flues deemed part of the common elements, which the condominium was responsible for maintaining and repairing. They also sought an order requiring the condominium to maintain and repair the chimney flues.

To summarize, the court ordered the declaration amended to make the fireplaces exclusive use common elements, but refused to amend the declaration to require the owners to maintain and repair the fireplaces. As a result, the condominium would be responsible for the repair of the fireplaces while the owners and condominium will continue to share the obligation for maintenance of the fireplaces. Our previous post is available here:https://ontcondolaw.com/2019/08/02/fight-fire-with-fire-seeking-court-orders-to-amend-the-declaration/

The condominium appealed the application judge’s decision not to amend the declaration to make the owners responsible for the maintenance and repair of the fireplaces. The condominium argued that it was inconsistent to interpret the declaration as having an error or inconsistency in one area (i.e. that the fireplaces should be exclusive use) but not in the other area (i.e. maintenance and repair of exclusive use common elements). The court of appeal agreed.

The relevant sections of the declaration are:

Section 22 – Maintenance and Repairs to Units

(a) Each owner shall maintain and repair his unit, including the maintenance and repair of the air conditioning and heating units from the shut off valve, and all ducts and services within the unit as well as maintaining any part of the common elements which he has exclusive use of, at his own expense.

Section 23 – Maintenance and Repairs to Common Elements

(a) The Corporation shall maintain and repair the common elements after damage. This duty to maintain and repair shall extend to all doors which provide access to the units, all windows (except maintenance to the interior surface thereof, the responsibility for which shall be left to the affected unit owner), and all exclusive use portions of the common elements.

Section 22 requires unit owners to maintain exclusive use common elements, but says nothing about repair with respect to those exclusive use common elements. Section 23 requires the condominium to maintain and repair after damage the common elements, including exclusive use common elements. The court of appeal stated:

This provision would, at first blush, appear to overlap with the requirements of s. 22. However, the use of the words “after damage” suggest that the duty under s. 23 is only triggered by the occurrence of an event that then leads to the need to repair. It does not appear to contemplate repairing common elements that have simply worn out or are otherwise inoperative simply through the passage of time. If that is so, and one looks only at the two sections, a gap then appears, because neither section addresses the duty to repair (as opposed to maintain) the exclusive use common elements in the normal course.
The court of appeal then looked at Sections 89 and 90 of the Condominium Act, 1998:
These sections create two separate repair obligations. Under s. 90(1), the corporation maintains common elements and the unit owner maintains their individual unit. In doing so, s. 90(2) defines the general duty to maintain, which includes the duty to repair after normal wear and tear.
Separate and apart from this general duty to maintain is the duty to repair after damage, which is necessary in situations where there is an unanticipated event that causes damage, for example, a severe storm. In that situation, s. 89 requires that the corporation repair the resulting damage, both to the common elements and to the units. A separate duty to repair after damage makes sense, since it will likely involve work that needs to be undertaken on an urgent basis. For the benefit of all unit owners, there should be no delay in undertaking the needed repair work.

The court reviewed Section 91 of the Act, which permits a declaration to alter the obligations to maintain and repair after damage described in the Act.

The court of appeal then discussed the application judge’s determination that the declaration created a mutual obligation to maintain the chimney flues. Putting aside their concerns with the application judge’s interpretation of “maintain”, the court of appeal also raised practical issues, such as how to divide the work between the two parties, choosing contractors, and the risk that each will point a finger at the other as being the one that needs to take the first step. The court of appeal found this an unworkable result.

The court found the provisions in the declaration inconsistent, or at the very least unclear, in the repair and maintenance obligations that they impose. The court ordered the declaration amended to require owners to maintain and repair the exclusive use common elements, including the chimney flues, after normal wear and tear:

One way to achieve what was intended would be to amend s. 22 to read:

Each owner shall maintain and repair his unit, including the maintenance and repair of the air conditioning and heating units from the shut off valve, and all ducts and services within the unit as well as maintaining and repairing any part of the common elements which he has exclusive use of, at his own expense. For greater certainty, this duty to maintain and repair includes the obligation to repair after normal wear and tear.

The decision is an interesting one, to say the least. The amendment proposed by the court of appeal does not actually appear to alter the obligations described in the declaration if one interprets the terms “maintain”, “repair”, and “repair after damage” in the manner described in the Act and previous cases. The proposed amendment by the court of appeal aims to make the obligations clearer to people reading the declaration who may be unfamiliar with these terms.

There may be serious repercussions for the industry from this case, as described in greater detail in our previous post. Will this open the flood gates to similar applications? At a minimum, it illustrates the importance of carefully drafting declarations to ensure the obligations are clear (to a layperson).

I can’t wait to see what the industry thinks about this decision.