Question

I am the director of a townhouse complex that is only four years old.  Going into our second year during winter, after all building warranties had expired, we were alerted to ice damming problems between peaks after a snowstorm.  Multiple units suffered water damage as a result.  Our insurance company would not respond until we had the ice removed from the roof of the entire complex.  With our deductible and the cost to contract the snow removal, we were faced with an unexpected cost, which was covered by using the reserve fund.

The following summer, after communication with the insurance company, we decided to take some preventative measures.  We had all the units’ insulation inspected and we verified that there was plenty of air movement through the soffits.  We decided to add turning raised vents at the peaks of all the units to assure there was adequate airflow.  The following winter was not as severe as the previous one but some ice accumulation was again noticed.  The following summer, we decided to install ice-melting wires on all the units that had collected any ice attributed to design problems.

In the winter of 2001, we had as much snow as the year in which our problems began and again dams developed.  Last summer, we expanded and moved existing down spouts and added three more.

Owners are still upset about the initial incident and complain that they should have been reimbursed for time and money they lost due to circumstances that were beyond there control.

In a previous issue, CM Condominium Manager tried to distinguish who is responsible when dealing with the costs of interior and exterior damage.  It left some grey areas.  Could you please help us to distinguish, with the above scenario in mind, what are the responsibilities of the unit owner and of the corporation?

There are 41 units and only 12 units of a 16-unit block are affected by this problem.  All the units are freehold and there is a maintenance fee collected for the shared common elements.

Submitted by a concerned director.

Answer

As a preliminary point, if there is any possibility of coverage under the Ontario New Home Warranty Program, this should be pursued.

This query raises the following principal questions:  Who bears the responsibility to insure with regard to damage that is personal to a unit owner? And who bears the responsibility for maintenance and repair?

The Condominium Act, 1998 requires that a condominium corporation obtain and maintain insurance, on its own behalf and on behalf of the owners, for damage to the units and common elements. The Act specifically excludes from this obligation the requirement to obtain and maintain insurance coverage over betterments or improvements made to the units. Each individual unit owner bears the responsibility of insuring personal belongings, as well as any betterments or improvements made to the unit.

Personal losses suffered by individual unit owners in the circumstances described are unfortunate. However, unless the condominium corporation was somehow negligent in carrying out its obligations under the Act, particularly with regard to the maintenance and repair of the common elements, there should be no recourse against the condominium corporation. Individual unit owners may be able to look to their own insurers for coverage in this regard.

In different circumstances, a condominium corporation facing a similar situation may find partial recourse under section 99(3) of the new Act, a remedy that was not previously available. This subsection implies that, while the insurer would not bear the responsibility of repairing the original defect, the resulting damage caused would be covered. For instance, in the case of defects in workmanship or materials to a roof resulting in the subsequent collapse of the roof, any damage caused to the interior of the building, for which the condominium corporation has the responsibility to insure, would be covered.

Questions concerning responsibility for maintenance and repair are rarely straightforward and usually require a careful review of the particular condominium corporation’s declaration and its description.

The reference to “freehold” units in the question adds a further dimension to this matter. The term “freehold”, as it is often used generically in reference to condominium units, implies that the boundaries of the townhouse units extend horizontally to include the land outside of the unit, which would traditionally have been considered as “exclusive use”. There is generally no vertical boundary associated with this type of condominium unit, meaning that the foundation and the roof form part of the unit.