05/11/2019 – Jurisdiction Ontario
68 published on 01/12/2019
Leak not the result of any failure on the part of the condominium corporation
There was a leak from one of the units. The owners asserted that the leak came from the common elements – and that the condominium corporation was therefore responsible to repair the leak.
The Court held that the leak was from the unit (namely a bathtub overflow drain), and therefore was not the corporation’s responsibility.
The bathtub had been replaced (incorrectly) by a previous owner of the unit. That work involved some modification to the common elements (namely, chipping of the concrete slab beneath the bathtub). This modification was not mentioned in the status certificate issued to the purchaser. Therefore, if the source of the leak had been located in the common elements, the current owner would not have been responsible because the status certificate had not included mention of it.
The Court said:
Ms. Zelinski was not aware of the alteration at the time of her purchase. She was not aware of any lack of written consent by PCC 395. She was not aware of the lack of compliance with the Declaration by the previous owners. In my opinion, it would be unfair and inequitable to hold her responsible for any repairs required to common elements due to the actions of a previous owner given the purpose of such Status Certificates which is to protect the purchaser, her lack of knowledge, and the ambiguous and overly broad provision as found in the Status Certificate.
On the other hand, I conclude that PCC 395 is not prevented from requiring the Applicants to fix what they are obligated to fix under the Declaration and Schedule. The Status Certificate does not insulate the Applicants from complying with their obligations despite the bathtub being installed by the previous owner. There is no evidence that PCC 305 was aware of this alteration to the bathtub when they issued the Status Certificate. To this extent the provision in the Status Certificate can be relied upon by PCC 395.