Liability of Condominium Landlords for Repairs
One of the main benefits for condominium investors is the fact that the majority of building maintenance and other major issues are dealt with by the condominium corporation which alleviates a lot of the work involved in managing traditional rentals. This can however be a double-edged sword.
Under Ontario law the landlord is responsible for maintaining the property and performing any repairs. Where major repairs are required condominiums often require board approval of the work, coordination between various parties or other procedures which can lead to delays when compared with repairs undertaken by private landlords. Individual unit owners often have little influence or control over these factors.
Further problems can arise from the fact that damage is often caused by tenants or residents of other units in the building over which the landlord has no effective control. For example faulty plumbing or negligence on the part of a resident in the unit above can cause considerable damage to the units below from flooding. In such circumstances establishing liability for the repairs and arranging for their completion can involve several players such as insurance companies for the condominium and the owner of the responsible unit .
In a number of cases the landlord and tenant board has held the unit owner liable, if not for the problems themselves then for the delay in effecting repairs. Many of these cases do not appear to have been very well-argued on behalf of the unit owner and are founded on propositions which seem to be clearly erroneous: For example, in several cases the board has expressed the opinion that the condominium Corporation is acting as the agent for the unit owner who is therefore liable for its conduct.
We would argue that the condominium corporation is in no way the agent of the unit owner. while the unit owner might be a member of the corporation (similar to a shareholder), an individual unit holder does not exercise any control over the actions of the condominium corporation. Nor is the condominium corporation charged with a duty to carry out the instructions of the unit owner but rather to manage the affairs of the condominium in the best interests of the corporation as a whole.
It could be further noted that the issue of dealing of repairs must be looked at in the context of the type of premises being rented. the lease of a condominium unit is a specific type of property interest which is not changed or modified in any way by virtue of the fact that the unit is leased. occupancy of such a unit brings with it certain benefits as well as certain drawbacks such as the necessity of dealing with the condominium board in relation to building maintenance issues. These restrictions apply regardless of whether the unit is occupied by a tenant or the owner themselves. It seems unrealistic to suggest that a condominium owner who is living in the unit would be subject to the inherent limitations of this type of property while a tenant who occupies the property is alleviated from these issues. The owner cannot lease a property interest that they themselves have.
A potential answer to this problem lies in the decision of the Ontario Court of Appeal in Onyskiw v. CJM Property Management Ltd. (2016 ONCA 477 (CanLII)) which contains an extensive discussion of the nature of the landlord's repair obligation. In Onyskiw the elevators in a multiple unit apartment building malfunctioned and were out of service for a considerable time during repair, due in part to a strike by elevator workers. The tenants argued that the mere fact that the elevators were out of repair entitled them to an abatement of rent as they had not received what they were paying for. The Landlord and Tenant Board and ultimately the appellate Courts rejected this argument and held that the landlord had taken all reasonable steps to address a situation that was largely beyond its control. Accordingly no abatement of rent was awarded. In doing so the Court supported a "contextual approach" and viewed the landlord's repair obligation as a duty of care as opposed to an absolute liability which was triggered upon mere proof of the existence of non repair.
In the case of a condominium landlord this reasoning should provide some insulation against liability during repairs provided that the landlord acts diligently in addressing the repairs with the condominium Corporation and management. Following the contextual approach supported by Onyskiw It could be further argued that the issue of dealing of repairs must be looked at in the context of the type of premises being rented. the lease of a condominium unit is a specific type of property interest which is not changed or modified in any way by virtue of the fact that the unit is leased. Occupancy of such a unit brings with it certain benefits as well as certain drawbacks such as the necessity of dealing with the condominium board in relation to building maintenance issues. These restrictions apply regardless of whether the unit is occupied by a tenant or the owner themselves. It seems unrealistic to suggest that a condominium owner who is living in the unit would be subject to the inherent limitations of this type of property while a tenant who occupies the property is alleviated from them. The owner cannot lease a property interest that is any different from that which they themselves have.
The above deals only with repairs that are the responsibility of other unit owners or the condominium corporation. For in-suite repairs the landlord remains responsible and should address the issues diligently and as quickly as possible to avoid liability.
If you have questions about a specific situation relating to a repair issue or other legal dispute surrounding your real estate I invite you to contact my office at 416-628-4835 of through my website. You can also subscribe to my blog or YouTube channel to receive regular updates on various legal issues concerning Ontario real estate and investment.
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