Units / Common Areas

Units vs. the Common Elements

For a description of what a common element is and what an exclusive use common element is, please refer to Section 3.1 of the Condo Guide. As noted common elements are elements which may not be for the exclusive use of a particular unit owner.

In a condo corporation, typically owners own their individual unit(s) and collectively share ownership
of and expenses for the common elements (e.g. roof, hallways, elevators, pool).

What is considered part of a “unit” and what is considered part of the “common elements” will be
outlined in the condo corporation’s declaration and description. Schedule C of the declaration
contains this information for most types of condo corporations, and more, as explained below. In
addition, the Condo Act includes information about what is a unit vs. a common element. The term
“common elements” generally means all the property except the units.

Understanding the breakdown between a unit and the common elements is important when
considering repair and maintenance obligations, condo insurance, and making changes to your unit.

 

Repair and Maintenance Obligations

Section 89 (2) of the Condo Act requires that, subject to the Condo Act and a condo corporation’s declaration:

  • Condo corporations are responsible for repairing damage to both the common elements and units. This obligation to repair does not include any improvements made to units.
  • Unit owners are responsible for maintaining their units (i.e., upkeep and repairing after normal wear and tear) and condo corporations are responsible for maintaining the common elements (e.g., parking, gardens, hallways, elevators, amenities, etc.).

The following documents, together with the Condo Act, are notable when it comes to figuring out repair and maintenance responsibilities:

1. Schedule C. Schedule C (within your condo corporation’s declaration) typically will outline unit boundaries and therefore clarify repair and maintenance responsibilities, especially in unclear areas (e.g., plumbing, electrical, areas behind drywall, etc.).

2. Standard unit by-law. A standard unit by-law or, if none, a schedule provided by the developer, will detail which components of a unit are the “standard unit” and therefore the responsibility of the condo corporation to repair.

Also, section 91 of the Condo Act allows condo corporations to alter these repair and maintenance obligations in their declaration. This means that when determining who is responsible for repairs or maintenance it is necessary to review your condo corporation’s declaration. Note, there are some different repair and maintenance requirements under the Condo Act for different types of condo corporations (e.g., vacant land condo corporations).

Making Changes to Your Unit

A condo corporation’s declaration, by-laws, and rules may contain rules about making modifications to your unit or common elements (such as requiring notice to the board, restrictions on design, décor, materials to be used, restriction on days or times when renovations are permitted, etc.). You may wish to review these requirements, as well as applicable requirements under the Condo Act, before considering changes to your unit.

Modifications to the Common Elements by Owners

Changes to the common elements (e.g., exterior walls) by owners generally will require board approval. Section 98 of the Condo Act states that an agreement (often referred to as a section 98 agreement) must be entered into between the condo corporation and the owner specifying, for example:

The allocation of cost of the proposed modification between the owner and the condo corporation; and
The respective duties and responsibilities of the owner and condo corporation for the costs of repairs after damage, maintenance, and insurance of the modification.

The board may approve a proposed modification, and there will be no requirement to provide notice to other owners if the modification is to an exclusive use common element, and the board is satisfied that the modification will not:

  • Have an adverse effect on units owned by other owners;
  • Give rise to any expense to the corporation;
  • Negatively impact the appearance of buildings on the property;
  • Affect the structural integrity of buildings; or
  • Contravene the declaration or any prescribed requirements.

Right of Entry

Section 19 of the Condo Act provides condo corporations, or a person authorized by the condo corporation, the right to enter units to perform the objects and duties or to exercise the powers of the condo corporation. They can only do so after providing reasonable notice to the owner of the unit.

Examples of when condo corporations may typically seek to enter units include:

  • To perform maintenance and repairs to the common elements;
  • To perform routine inspections on things such as smoke detectors; and
  • To ensure compliance with the Condo Act and the condo corporation’s declaration, by-laws, and rules.

Your condo corporation will also have the right to enter units in the case of an emergency, such as a fire or water leak, without any reasonable notice.

Source: Ontario’s Residential Condominium Buyers’ Guide

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