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Condo Smarts: Alteration agreements have been lost over time

Dear Tony: Our strata corporation is 164 units of mixed-use highrise, townhouse and commercial space. Over the past 15 years, a number of strata lots of all three types have made significant changes to the use of their properties.

Dear Tony: Our strata corporation is 164 units of mixed-use highrise, townhouse and commercial space. Over the past 15 years, a number of strata lots of all three types have made significant changes to the use of their properties.

Our strata took a pretty casual approach to managing the alterations, with the assumption that each owner would be responsible for their own repairs.

Now, we have issues with changes of windows and balcony enclosures that are causing damage to other strata lots.

Several of the units have sold several times and the new owners refuse to perform the maintenance or pay for the repairs.

In many circumstances, we had alteration agreements drawn up, but with several changes of management companies over the years, none of these records have been retained, so subsequent owners knew nothing of the alterations.

Can we impose new agreements on the current owners through our bylaws, or are we stuck with the repair costs?

Natalia W.

The Strata Property Act requires strata corporations to disclose to buyers who request a Form B Information certificate whether there are any agreements in which an owner has taken responsibility for the cost of maintenance and repair relating to an alteration.

There are several problems with the disclosure process if the agreements were not drawn up correctly or have not been disclosed in every circumstance. Strata corporations are notorious for inconsistent record keeping.

In addition to several changes of management structures in which documents are frequently lost or destroyed, council members with oversight for alterations associated with other council members frequently ignore the obligation of an alteration agreement or the requirement to retain and disclose the documents to subsequent buyers.

In addition, alteration agreements are often incomplete, randomly applied or vary greatly depending on the experience of the current strata council.

All of this means it is unlikely and extremely difficult to impose a retroactive agreement or condition on a buyer who was unaware of the obligations.

Bylaws may remind people of their obligation to maintain and repair their strata lots and their obligations on limited common property, but a bylaw can’t make an owner responsible for the maintenance and repair of common property.

Check your registered strata plan to determine the allocation of the property.

In your case, all balconies and decks are common property, so the obligation to repair and maintain common property automatically defaults to the strata corporation.

If the strata corporation has maintained alteration agreements and properly disclosed those agreements to subsequent purchasers, you may be able to recover the costs of the repairs and maintenance of the balcony or deck associated with those agreements.

It might be in the best interest for the strata corporation to address all the decks and balconies to ensure there is no further damage to the building.

This often requires the removal of balcony enclosures to repair the areas attached to the building exterior.

If an owner wishes to have a new enclosure reinstalled, or a deck enclosure reinstalled, the strata corporation may consider these as alteration applications under your bylaws.

If they’re approved, council may set a series of conditions, such as to who pays for future maintenance and repair costs, building-permit requirements, engineering services and the cost for legal services to set up the agreement.

 

Tony Gioventu is executive director of the Condominium Home Owners Association.