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Amendments to the Condominium Act, 1998 alter the language of maintenance and repair in ways that might upset the status quo in some condominiums. 
For many years, the legislation governing condominiums in Ontario has made a distinction between the obligations to “repair after damage” and “maintain” the common elements or the units of a condominium corporation. Prior to 2001, these terms were undefined in legislation, other than a statement to the effect that they were “mutually exclusive”. When the Condominium Act, 1998 (the “Act”) came into force in May, 2001, it contained new, clarifying language, which affirmed that the obligation to repair after damage included the obligation to replace after damage or failure, and that the obligation to maintain included the obligation to repair after wear and tear. Inevitably there were arguments over whether an item had failed, or whether a repair was needed due to wear and tear or damage, but these definitions were useful, particularly as they helped provide a basis for interpreting older condominium declarations and drafting new ones. However, the recent changes to this legislation have taken these definitions away.
Although not in force as of the date of this writing, once proclaimed in force section 89 of the Act will no longer define “repair after damage,” but will refer solely to “repair,” which is now defined (in section 1 of the Act) as “to repair or replace after normal wear and tear, damage or failure”. The term “maintain” under section 90 of the Act will be kept, and is not specially defined but is clarified by this statement in the new subsection 90(2): “The obligation to maintain does not include the obligation to repair.” Surely there was a belief by someone, or some group, at some time that this would be a useful and beneficial change. What might not have been considered is what potentially difficult or contentious changes it triggers for existing condominium corporations, which – keeping in mind that the Act still retains subsection 7(5), which says, “If any provision in a declaration is inconsistent with the provisions of this Act, the provisions of this Act prevail and the declaration shall be deemed to be amended accordingly” – must now undertake the exercise of determining whether these amendments change the meaning of the provisions of their declaration to the extent that they also change the status quo of how the duties to maintain and repair the property of their condominium are shared. For example, if your condominium was registered between 2001 and today, it might well only contain a reference to the obligation for repair after damage of a particular part of the property. Does this mean that the obligated party does not also have a duty to repair after failure or wear and tear (even if that party retains a corresponding duty to maintain the same part of the property)? Other, much older declarations often contained only the terms “repair” and “maintain” even though the legislation at the time might have implicitly required a reference to “repair after damage”. Since 2001, at least, these declarations ought to have been interpreted (thanks to subsection 7(5) of the Act) in light of the definitions in place, which has sometimes been challenging because the terms used were not consistent with the Act. When the new amendments come into force, however, they suddenly will be, and the old obligations will be subject to new interpretations, which might match what the declarant originally intended, but not what the condominium’s practices will have been. It will be wise for condominium corporations to allow their legal counsel to consider the new language of the Act with the existing language of their declarations, and let them know whether anything of significance is changing for them.
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