By David Lu
The fact that the theme of this issue of the Echo is physical infrastructure, reminded me that I hadn’t yet written about one of the most unfortunate events that occurred earlier this year, the Florida condo collapse.
The loss of life, the injuries to those that have survived, and the loss of homes for so many are all immensely tragic. Could such a catastrophe happen here?
The short answer is “yes”; this type of event could happen anywhere. If you ask Jim Davidson of my firm, he’ll say that over his almost forty years of experience in this field, he’s seen two or three “close calls” in Ontario.
Many jurisdictions have protections against these types of calamities. The protections that exist in Ontario condominium law include:
- a robust Building Code, which in my understanding includes an “over-design” element for most structural components.
- professional, licensed condominium property managers, who in my experience are highly component, and will often see and address problems as they emerge.
- mandatory training for condominium directors. Condominium directors in Ontario generally understand their roles and responsibilities.
- mandatory reserve funds to pay for capital expenditures and repairs. There are also legal requirements that require the reserve fund to be adequately funded.
- mandatory reserve-fund studies. These studies require an expert inspection by an engineer during the building’s first year, and every six years thereafter. These are surface inspections, but the experts involved inevitably recommend further investigation if surface symptoms reveal a possible underlying issue. Reserve fund studies can also guide Ontario condominium Boards when it comes to predicted and required long-term repairs and replacements. There is also a mandatory update on the study conducted without an inspection during the three-year point between studies.
- powerful lien rights which enable condominium corporations to collect common expenses which are needed to get work done.
Moreover, Section 37(3) of the Condominium Act states that condominium directors are protected from liability if they rely on the advice of an expert. This incentivizes Ontario Boards to seek expert advice and, more importantly, to follow that expert advice. This is one of our firm’s foremost recommendations to Boards and Managers: if in doubt, particularly for a building issue, promptly seek expert advice and follow that advice in a timely matter.
However, even with the best plans, condominiums can still face unexpected defects or deterioration. When this happens, and particularly if the repair work required is expensive, it can place huge stresses on owners and the entire condo community. In most of these cases, the legal responsibility for the work falls on the Board, whereas the financial burden falls on the owners. (There can sometimes be an option to borrow money to soften the financial blow.) The potential tension between the Board and the owners during these situations is obvious. In such a case, effective communication is often the key to successfully moving such matters forward, and to arriving at an adequate repair in the building.
The risk of building failure is an inescapable possibility, even in Ottawa. However, Ontario laws provide strong protections and impose formidable obligations on the relevant parties to ensure that the risk is as low as possible.
David Lu is an associate at Davidson Houle Allen LLP, a boutique condominium law firm serving Eastern Ontario.