Condo Board Not Repairing Common Elements: Your Options in Ontario

A leak in the parkade, a broken elevator or a crumbling balcony has been reported again and again, and nothing happens. It is frustrating, especially when you pay monthly fees every month.

This article explains how the money and decision-making work, how to build a paper trail, and where the Condominium Authority Tribunal or the courts may come into play.

Who pays for and decides on repairs

Common expense fees pay for maintaining the common elements, reserve fund contributions, and services such as cleaning, building maintenance and condo management.

The reserve fund may be used only for major repair and replacement of the common elements and assets of the corporation. The board decides how much goes into it and may need to raise contributions to keep it adequate.

• Each owner's share of common expenses is a percentage set in the declaration and may vary with unit size. For example, a unit with a 5% share of a $1,000 monthly budget pays $50 a month.
• Special assessments and chargebacks are ownership costs separate from regular monthly fees. A chargeback is a cost the corporation bills to one owner, usually because of that owner's act or omission.

If a repair costs more than budgeted, the board can levy a special assessment through common expense fees without owner approval. A board that delays may be short of money, or may simply be slow, and the answer shapes your next step.

Check the reserve fund study and the documents

The reserve fund study inventories components expected to need major repair or replacement within at least 30 years. After the first study, updated studies are required at least every three years.

Once the board has the study, it must review it within 120 days and propose a funding plan. Directors who depart from the study provider's professional advice may face liability. If your problem is a major component, ask whether it appears in the study and what the plan says.

• A new condo corporation must complete a Class 1 reserve fund study within the first year after the declaration and description are registered.
• Later updates alternate between Class 2, which includes a site inspection, and Class 3, which is a review of records and interviews with no site inspection.
• Studies must be done by qualified professionals.
• A component goes in the study inventory only if its replacement cost is at least $500, so a small item may not appear.
• Within 15 days of proposing the funding plan, the board must send owners a notice on the prescribed form, the Notice of Future Funding of Reserve Fund.
• The board must implement the proposed plan 30 days from the date it sent the plan to the owners and the auditor.

Also read your declaration, by-laws and rules. They apply in that order below the Condo Act, and if they conflict the Act takes priority.

Escalate in writing

• Write to the manager and the board, describing the problem, its location and when you first noticed it.
• Attach dated photos and keep copies of every message.
• Quote the relevant part of the declaration or by-laws, if you can find it.
• Ask for a clear response by a reasonable date.
• Follow up in writing if you hear nothing.
• Note how any damage is affecting your unit, and tell your insurer if it has.

A calm, factual record helps whichever route you later take.

If damage reaches your unit, the corporation repairs damage to the standard unit as defined in its governing documents, and owners must repair everything outside that definition, however the damage was caused. The corporation's property insurance does not cover improvements or non-standard elements of units.

Records, the Tribunal and the courts

Ask the corporation for the records that show what it has done, such as repair quotes, reserve fund study materials and board decisions. Disputes about records are among the issues within the Condominium Authority Tribunal's jurisdiction, along with nuisance (noise, smoke, odour), parking, storage, pets and settlement compliance.

Where a lien is tied to an issue outside the Tribunal's jurisdiction, such as repairs, the dispute must go to the Superior Court of Justice. Whether your particular complaint can be heard by the Tribunal depends on the facts, so confirm this with a lawyer before filing anywhere.

Ontario has also passed changes to condo law that are not all in force, so check what applies when you act.

What to do next

Unpaid common expenses can have serious consequences, so talk to a lawyer before changing how you pay your fees while a dispute is open. When an owner defaults, the corporation automatically has a lien against the unit that covers the unpaid amount, interest and all reasonable legal costs and collection expenses.

If you are buying and notice a building with deferred repairs, the status certificate may include a statement on the most recent reserve fund study and the state of the fund. A status certificate must be provided within 10 days, and whatever it includes or leaves out binds the corporation. If letters have gone unanswered, a lawyer can review your documents and explain your options.

Frequently asked questions