Obligations of condo corporations regarding common elements

There has been recent mention in the media regarding elevators in condominium buildings that have been out of service for substantial periods of time. Stories like these raise the legal questions: what is the obligation of a condominium corporation to maintain and repair the common elements and what can be done if the corporation fails to live up to its obligations?

The overall duty of a condominium corporation is to control, manage and administer the common elements and the assets of the corporation. In a condominium apartment building, the common elements usually include the grounds, the entire structure of the building and the principal systems within the building. In a condominium townhouse development, the common elements often include the grounds, the entire building structure, but not the heating, electrical and plumbing systems.

Specifically, the condominium corporation has a duty to maintain the common elements. This duty to maintain includes an obligation to repair after normal wear and tear. In addition, the condominium corporation has a duty to repair the common elements after damage. This duty to repair includes a duty to repair and replace after damage or failure.

If an elevator or a pump breaks down, it is the duty of the corporation to do everything reasonable to bring back the equipment to good working order as soon as possible in accordance with the prevailing circumstances.

Under the Occupiers’ Liability Act, the condominium corporation is deemed to be the occupier of the common elements. As such, the corporation owes a duty to “take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.”

Accordingly, anyone who is personally injured or whose property has been damaged as a result of the condominium’s failure to maintain or repair has a cause of action against the corporation for damages suffered.

What is the recourse of an owner of a unit within the condominium who has not suffered quantifiable damage as a result of the corporation’s failure to maintain or repair the common elements but has been greatly inconvenienced by such things as a broken elevator, leaking roofs or faulty sewers? Section 134 of the Condominium Act gives an owner the right to bring an application in the Superior Court for a compliance order requiring the corporation to live up to its specific obligations. Unfortunately, such a remedy is expensive and cumbersome for any particular owner or group of owners.

An aggrieved group of owners may have an indirect recourse against the condominium corporation by bringing a requisition for a meeting of owners to remove all or some of the directors. If a vote of 50 per cent of all owners plus one can be obtained for removal, the particular director or directors may be removed and then replaced. While such a process can be successful, it is also quite cumbersome.

The obligations of a condominium corporation to maintain and repair the common elements are quite clearly set out in the legislation. The duty to keep the premises safe for those who enter the building is also set out. Remedies for the failure of the condominium corporation to keep the property safe or in good repair do exist but are expensive and hard to obtain — and are beyond the means or organizational capabilities of most unit owners.