Unit owners are required to carry out preventative maintenance

By Jonathan Miller and Megan Mackey

A recent judicial ruling confirms that unit owners are required to carry out preventative maintenance if this is necessary to mitigate the effects of the wear and tear on the common elements. This requirement applies at all times – including where a unit is used in an ordinary and expected manner.

The case of Landont Limited v. Frontenac Condominium Corporation No. 11 pertained to repair and maintenance obligations of a garage waterproofing membrane. The condominium corporation had installed a waterproofing membrane in the commercial parking area, which was located directly above the residential parking area. The condominium corporation instructed the commercial parking unit owner to power wash its parking area in order to keep the parking garage surface clear of debris, chemicals and corrosive substances. This was deemed to be necessary to prevent deterioration of the waterproof membrane.

The commercial parking owner refused to power wash its parking area. The condominium corporation therefore performed the power washing and charged the cost back against the commercial parking owner. The condominium eventually registered a lien to secure payment of the power washing costs.

Litigation ensued. The questions for the court were: whether the waterproof membrane was part of the concrete slab, and therefore the Corporation's responsibility to repair; and, did the commercial parking unit owner have an obligation to maintain the waterproof membrane?

The unit boundary was “the upper surface of the concrete floor”. The Corporation argued that the membrane was part of the unit because it was placed on top of the concrete slab. If this interpretation were accepted, the commercial parking unit owner would have become responsible to repair and replace the membrane going forward. The commercial parking unit owner argued that the membrane was part of the concrete slab, and therefore a common element, because it was applied with a brush and roller and formed part of the surface of the floor.

The Superior Court concluded that the waterproof membrane was part of the concrete slab, and the condominium was therefore responsible for its maintenance and repair. The Court was influenced by the fact that the Corporation had paid to install the membrane and that its reserve fund studies allocated funds for the eventual repair or replacement of the waterproof membrane.

However, the Court the court concluded that the commercial parking unit owner had a duty to perform preventative maintenance to mitigate the effects of wear and tear on the common elements caused by normal use. Therefore, the commercial parking unit owner was responsible for the cost of power washing its parking area. The lien for power washing costs was upheld.

In this decision, the court signaled to condominium corporations that they can enforce maintenance obligations within units so long as the condominium can show the maintenance is necessary to protect the common elements.