By Melinda Andrews
While most things in our “post-pandemic world” are back to usual for the condominium industry, one area that still seems to be experiencing difficulties is related to repairing and maintaining condominium properties.
It’s no secret that the construction industry became overrun with work during the pandemic, and the backlog that was created seems to be carrying on today. For many condominiums, repair and maintenance work that was put off during the pandemic still needs to be scheduled, and there is a further backlog being created by increased demands for construction work. As such, we’re seeing contractors, engineers and architects with less availability than before. It’s taking longer to order equipment, materials and replacement building components. And the cost of labour, consulting and materials has increased.
The result is that from a legal standpoint, these conditions can increase a condominium’s exposure to liability for failing to comply with its repair and maintenance obligations. Sections 89 and 90 of the Condominium Act set out a condominium’s repair and maintenance obligations. They require condominiums to repair standard units and common elements after damage, and to maintain the common elements more generally, which includes the obligation to repair after normal wear and tear. The basic principle that applies to these obligations is reasonableness: condominiums must ensure that they are taking reasonable steps to comply with their repair and maintenance obligations. While this sound simple, there is added pressure that comes to bear now that there are increased delays.
The bottom line is that it is important for condominiums to be mindful of these timing issues and increased costs when planning for repair and maintenance work now. It’s important that they don’t turn a blind eye to the problem and assume that everything will proceed as it did in pre-pandemic times, or that work can be put off as easily as it may have been in the past.
The solution, in my view, really comes down to sound governance and being forward looking when it comes to repair and maintenance. Points for Boards to consider are:
- Looking closely at any reserve fund study prepared prior to the pandemic, if they haven’t already. Pre-pandemic reserve-fund studies could not have taken into account the increased construction costs the pandemic has caused, and as such a condominium’s reserve fund plan may no longer be sufficient to cover these costs.
- Meeting with reserve-fund analysts to see if they have any suggestions to get out ahead of major projects before they become urgent. In some cases it’s taking 12 to 24 months to order certain building components, and an analyst will have a good sense of whether a condominium will run into this problem.
- Deciding whether it makes sense to complete an early reserve-fund study to address increased construction costs, inflation or any repair work that was deferred during the pandemic.
Beyond these points, now is really the time to invest in good professionals—an engineer, architect, or reserve-fund analyst–to help with the larger-scale repair and maintenance work. It can be tempting to avoid incurring additional fees at a time when everything else is costing more for owners. But, in my view, its better to front load the costs to get good advice from the outset on reserve-fund planning and large-scale projects to get out ahead of any problems that may arise, rather than responding to clean up the problem after the fact (which typically winds up being more expensive in the end), or finding out at the last minute that the work will be more costly than anticipated.
Melinda Andrews is a lawyer at Davidson Houle Allen LLP Condominium Law.