The Open Door Blog
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Fitness rooms, rooftop terraces, parking garages, garbage chute, and mechanical rooms – these are just a few examples of items that would usually be considered common elements. What some new unit owners might not know is that when things go wrong, common elements of a residential condominium project have their own separate warranty that is backstopped by Tarion.
What are “common elements” of a condominium project?
Common elements are the parts of residential condominium projects that belong to all unit owners. They include all the property excluding the units. Some examples include:
- Areas that are shared by residents, like lobbies, corridors and outdoor gardens
- Recreational facilities, such as pools and gyms
- Exclusive use areas, like balconies
- Parking garages
- Shared systems such as elevators, heating and cooling systems, and electrical systems
Why are “exclusive use areas” considered to be common elements?
If the area is next to the unit and the unit owner has exclusive access to it, it may be a common element that is not part of the unit. The answer depends on what’s in your condominium’s Declaration. Look for Schedule C in your declaration – this will detail the specific boundaries between your unit and your building’s common elements.
Some examples of exclusive use common elements include:
- Individual balconies
- Front or back yards and driveways in townhouse condominiums
- Designated parking garage spaces
What is the Declaration?
If you’re buying a new build condominium, you’ll receive a disclosure statement from the vendor that provides important information about the condo you’re buying – including the proposed declaration for the project.
The declaration sets out matters of ownership such as the boundaries, the designated use, proportion of common expenses allocated to the unit, and repair and maintenance obligations.
The declaration is prepared by a declarant – generally, this would be the project’s vendor, developer, or a legal firm representing them.
When buying a new condominium, you’re entitled to read through the declaration before you complete your purchase.
What if you purchase a resale condominium?
Even as a resale buyer, you should be able to review the declaration. The seller’s real estate representative should be able to provide it to you. You can also request a status certificate for your condo unit, which includes information about common expenses for the unit and any legal issues affecting the project, along with a copy of the most recent reserve fund study.
It’s important to look through these documents, especially if the condominium is still under warranty.
Common Elements Warranty
The warranty on your unit begins when your unit is ready for occupancy. The common elements warranty coverage doesn’t begin until the declaration and description for the project are registered by the declarant at the local land registry office.
Once registered, a condominium corporation is created and the common elements warranty under the Ontario New Home Warranties Plan Act comes into effect. Like the warranty for the condominium units, the common elements warranty consists of three coverage timelines: one-year, two-years and seven-years.
Who can make a claim under the common elements warranty?
Under the Ontario New Home Warranties Plan Act, the condominium corporation is the “owner” of the common elements of the project. This means that only the corporation can submit and manage warranty claims made to Tarion.
The Condominium Act requires that the condo corporation hire a consultant to prepare a performance audit identifying any deficiencies in the common elements, such as defects in workmanship or Ontario Building Code violations. The performance audit generally includes unit surveys in which unit owners can report deficiencies they’ve observed in the common elements.
The condo corporation will submit the performance audit to Tarion as a warranty claim for the common elements. The condo corporation will also appoint a designate - often the condominium manager - to work with Tarion and the vendor to resolve deficiencies reported in the audit.
If I discover a common elements issue in my building, who can I bring this to?
If it’s an issue inside your condo unit, contact your vendor first and, if it’s not resolved, make a claim to Tarion under your unit warranty.
But if it’s in the common elements, report it in the unit survey for the performance audit or contact the condominium corporation or the condominium manager. This way, the corporation may act on your report by making a claim to Tarion.
If an issue is not reported to Tarion within the applicable warranty period, the condominium corporation may choose to pay for the repairs itself.
Checking on progress of a common element repair
If you are wondering about the status of an ongoing repair to the common elements, your first call should be to the condominium corporation or the condominium manager. This is because, during the 18-month vendor repair period, both the vendor and the corporation are required to provide updates to Tarion and to each other. The corporation should be able to provide you with a status update.
Because the condominium corporation is responsible for making and managing common elements warranty claims under the Ontario New Home Warranties Plan Act, Tarion must communicate directly and only with the corporation or its designate. Tarion cannot provide information to unit owners about common elements warranty claims.
Do repair timelines for common elements differ from those for issues inside the unit?
Typically, the repair timelines are longer for common elements warranty claims, than for claims under the unit warranty. For example, common elements deficiencies reported to Tarion within the one-year and two-year warranty periods must be resolved by the vendor within 18 months from the first anniversary of the project registration date.
After that date passes, a conciliation may be requested by the corporation or its designate. When it comes to major structural defects reported to Tarion in years 3 to 7 after registration, the vendor has 90 days from the date the claim is made to Tarion to resolve deficiencies covered by the major structural defect warranty. After that dates passes, a conciliation may be requested by the condo corporation or its designate.
Tips for avoiding common elements issues
Remember, there are various types of problems that would not be covered by the common elements warranty, such as:
- Damage caused by the unit owners or visitors
- Alterations, deletions or additions made by a unit owner or the condo corporation
- Damage resulting from improper maintenance by unit owners or the condo corporation
On a day-to-day basis, residents of a community should try to treat the common elements as though they were a part of their own unit. This can help prevent damage that is not covered by the warranty.
If you’re planning to do work on any of your exclusive-use common elements, notify your condo corporation and obtain permission from them to undertake it. Get their advice, or speak with your condominium manager, regarding trusted contractors. Understand that the work you do and any resulting damage will not be covered by the statutory warranties.
The goal of this blog is to provide you with general information about the warranty process by sharing real experiences from new homeowners. The blog should not be relied upon as legal advice. For privacy reasons, we will not address or resolve current cases in a public forum, so any comments or questions that are posted on this site that describe individual cases cannot be discussed. If you have a question about your warranty or Tarion generally, we would be pleased to discuss your issue, in the context of your particular circumstances and in confidence. We exercise reasonable care to avoid offensive, illegal or defamatory content from being posted, as well as comments that are intended solely for self-promotion or considered to be spam.