Condo Issues
Robert Noce

Q: One of the units in our condo complex got a crack in its foundation. During last year’s heavy rains water leaked into their basement, which was carpeted and drywalled. Because the foundation is a corporation issue, we agreed to hire a contractor to fix the cracks and replace the carpet and drywall. At that time, I was not on the board. Now I am on the board, and from what I understand, any improvements should have been paid through their own insurance.

The original units were bare cement basements. The owners signed off on the work and the corporation paid all costs. After more heavy rain, the foundation leaked again, but not to the extent of the first leak. The corporation hired the same contractors to complete repair work on the outside walls. The owner’s father became involved and got the cleanup done and mould testing, and had the cleanup crew remove all of the new carpet that could have easily been cleaned, which the owner admitted.

The corporation has now paid out $25,000 to make this unit leak-proof with additional sump pumps, and we are not willing to pay for their new carpet and drywall that was already replaced in good faith, even though the corporation was not obligated. We advised them that the carpet and drywalling is their responsibility, and as a corporation our role was to repair the foundation wall, pursuant to our bylaws. The owner is now threatening to take us to court. Do they have a leg to stand on when improvements are not our responsibility under the bylaws?

A: This is a difficult question to answer, but let me give you some general legal principles relating to insurance. In Alberta, there are no set rules regarding insurance for fixed unit improvements.

Some bylaws require unit improvements to be insured, while others do not. The other problem is the fact that in Alberta there are no set rules for what is considered to be an improvement and what is not. Generally, improvements are considered to be upgrades that an owner has added to their unit after the units were purchased from the developer.

Helpful Hint: Unfortunately, the legislation in Alberta has not kept up with the growing condominium market. Condominium corporations, owners and insurers would benefit from having a clear understanding of what property must be insured by the condominium corporation and what is the responsibility of the unit owners.

Q: Our condominium board has decided that we need to update our exterior door hardware at the owners’ expense. The cost will be considerable to hire someone to replace the deadbolts and all the door hardware, which are currently in perfect shape. Is the exterior door hardware my responsibility?

A: The Condominium Property Act states that all doors of a unit that are located on the interior walls of the unit are part of the unit, unless otherwise stipulated in the condominium plan. As well, all doors of a unit that are located on exterior walls of a unit are part of the common property, unless otherwise stipulated in the condominium plan.

The reference to a door includes the door assembly components. Therefore, in order to specifically answer your question, one would need to review your condominium plan. If the condominium plan indicates that a door is an owner’s responsibility, then you are required to pay.

If you do not like that arrangement, then you could seek the support of at least 75 per cent of the owners and unit factors to make a change to your condominium plan and transfer the responsibility and cost of the doors to the condominium corporation.

Helpful Hint: When buying a condominium unit, it is so important that you spend the time to review the bylaws and condominium plan. You need to know what you are responsible for.

Q: I am the president of my condominium Board. We have some garage pads that are sinking and pulling away from the foundation. I was wondering who is responsible for this repair and maintenance. There is nothing in our bylaws to help us address this problem.

A: You need to review your condominium plan. If your condominium plan indicates that the garage pads are common property, then it is the responsibility of the condominium corporation. If the condominium plan indicates that the garage pads belong to the unit owner, then it will be the responsibility of the owner.

Helpful Hint: The condominium plan is a very important document. Always refer to it if you have questions about the boundaries relating to common property.

Q: We have a building envelope problem. The condominium corporation hired two different consultants who each stated that the building envelope needs to be redone. During the investigation they removed my deck, as it had caused some leaking. It has now been months, and I am still without a deck.

The engineer indicated that the work needs to be done immediately. Some owners want it to be done in phases to reduce the upfront cost. The engineer advised against this. The board is delaying the work and I am losing rental money, as the tenant does not want to pay full rent due to construction. How can I get the board to fix my deck and proceed with the building envelope work?

A: Now that the Board is aware of the building envelope problem, the Board is required to take active steps to deal with it. If the board is doing its due diligence and it is taking longer than it should, then there may not be anything you can do to force the board to move quickly. I know from experience that these things take time.

However, if the board is not doing anything because it does not want to issue a special levy against the owners or borrow the money, then the board may be guilty of improper conduct. I hope the board is seeking legal assistance on this issue to ensure that it is compliant with the Condominium Property Act with respect to their duties as board members.

As well, you may want to review your bylaws to determine what steps you could take to call an extraordinary general meeting and bring all the owners together to force the board to move more quickly. The owners could provide direction to the board and the board would be required to follow it.

Helpful Hint: This is a difficult situation because the board recognizes that work needs to be done, but it will be expensive. Unfortunately, the need to get the work done must take priority over the cost. The cost is the cost, and that is a part of condominium living.

Q: If outside patio door glass is shattered, who is responsible for the repair? When I bought the condo unit, I did not get a copy of the bylaws. I asked for a copy from my management company, but they have indicated that I have to pay for it. Is this proper procedure?

A: All windows of a unit that are located on the interior walls of the unit are part of the unit, unless otherwise stipulated in the condominium plan. As well, all windows of a unit that are located on exterior walls of the unit are part of the common property, unless otherwise stipulated in the condominium plan. Therefore, to answer your question, I would need to review your condominium plan.

With respect to the bylaws, I find it odd that you would not have demanded a copy of the bylaws when you purchased your condominium unit, as a copy should have been provided prior to removing the conditions. In any event, now that you require a copy you will have to pay for it.

Helpful Hint: When you are buying a condominium unit, take the time to ask for the condominium documents. If you are using a realtor, then the realtor will know what to do and provide you with that information.

Q: I live in a bare land condo located in Calgary. Should there be a break on the sewer line underneath the access road (common property) to our duplex villas, it will be the condominium corporation’s responsibility to fix it. This seems unfair, since citizens living in houses pay the same rates, but any sewer line break is repaired by the city as long as it is outside of the homes’ property line. What are your thoughts on this issue?

A: First, the application of the rule as to whether or not it is the city’s responsibility to fix a sewer line is the same whether you live in a condominium complex or in a single-family home. It is the city’s responsibility to repair a break on a sewer line if the break occurs on the city’s property. The access road in your duplex is not city property. It is privately owned by all of the owners, as it is common property. Therefore, there is no discrimination in that regard.

With respect to sewer and water charge costs, that is an issue you should bring forward to your municipal council, as it is not a condominium issue. I would suggest that you write a letter to your ward councillor to express your views.

Helpful Hint: Some of the issues that arise in condominium living may seem unfair, but municipalities balance those interests to ensure that all citizens have access to good services.

Robert Noce, Q.C. is a partner with Miller Thomson LLP in both the Edmonton and Calgary offices. Send your questions to condos@edmontonjournal.com. Answers aren’t intended as legal opinions; readers are cautioned not to act on the information provided without seeking legal advice on their unique circumstances.