Maintenance Standards By-laws
Short Answer
A condominium by-law that sets out standards, levels or procedures for the performance of maintenance obligations of the corporation and/or unit owners.
Definition
Subsection 56(1)(j) of the Condominium Act, 1998, (the "Act") provides that a condominium corporation may establish by-laws that "govern the maintenance of the units and common elements".
The Act provides no specific direction about this type of by-law, but it should be assumed that one thing a maintenance by-law cannot do is alter the assignment of responsibility for maintenance that is set out in the Act or in the condominium's declaration or create any such assignment.
The Act states clearly that, "the corporation shall maintain the common elements," and "each owner shall maintain the owner's unit," (see subsection 90(1) of the Act). The Act further allows that "The declaration may alter the obligation to maintain...as set out in this Act by providing that...(b) the owners shall maintain the common elements or any part of them; (c) each owner shall maintain...those parts of the common elements of which the owner has the exclusive use; and (d) the corporation shall maintain the units or any part of them," (see section 91 of the Act). The Act does not provide for any other or further changes to these basic obligations, either in the declaration or in the by-laws or rules of the corporation.
It therefore stands to reason that the only purposes for a maintenance by-law can be to establish standards, levels or procedures for performance of the maintenance obligations that are allocated under the Act and/or the declaration. A by-law that purports to go beyond this and to actually allocate responsibility is ultra vires ("beyond the powers") of the condominium corporation and therefore is invalid and should be considered unenforceable.
See the Condopædia article, By-laws, for general information on the procedure for enacting a condominium by-law.
The Act provides no specific direction about this type of by-law, but it should be assumed that one thing a maintenance by-law cannot do is alter the assignment of responsibility for maintenance that is set out in the Act or in the condominium's declaration or create any such assignment.
The Act states clearly that, "the corporation shall maintain the common elements," and "each owner shall maintain the owner's unit," (see subsection 90(1) of the Act). The Act further allows that "The declaration may alter the obligation to maintain...as set out in this Act by providing that...(b) the owners shall maintain the common elements or any part of them; (c) each owner shall maintain...those parts of the common elements of which the owner has the exclusive use; and (d) the corporation shall maintain the units or any part of them," (see section 91 of the Act). The Act does not provide for any other or further changes to these basic obligations, either in the declaration or in the by-laws or rules of the corporation.
It therefore stands to reason that the only purposes for a maintenance by-law can be to establish standards, levels or procedures for performance of the maintenance obligations that are allocated under the Act and/or the declaration. A by-law that purports to go beyond this and to actually allocate responsibility is ultra vires ("beyond the powers") of the condominium corporation and therefore is invalid and should be considered unenforceable.
See the Condopædia article, By-laws, for general information on the procedure for enacting a condominium by-law.
What you need to know…
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…as a Unit Owner
Unit owners are obligated to comply with the condominium's by-laws. Section 92 of the Act provides that, in certain cases, where an owner fails to carry out the owner's maintenance obligations in a timely manner, the corporation may do the work necessary and charge the cost back to the owner as a common expense obligation (and thus, a payment duty that is subject to enforcement by condominium lien). It should be considered that even if the owner takes steps to do maintenance, the failure to carry out the obligation in accordance with any applicable maintenance by-law likely will give rise to these rights. Therefore, even though the owner has the primary obligation to maintain his or her or its unit or a portion of the common elements, this does not give the owner carte blanche to carry out such duty in whatever way the owner wants. |
…as a Board Member or Manager
As noted above, boards should be careful not to seek to enact a by-law that alters the basic obligations to perform maintenance. A maintenance by-law should be strictly limited to establishing minimum standards and reasonable procedures for the work that is done. Like all condominium by-laws, a maintenance by-law must be reasonable and consistent with both the declaration and the Act. |
…as a Declarant
Declarants may wish to enact maintenance by-laws when creating a condominium, particularly if there a features of the property that require specialized handling or have special value to the community as conceived by the declarant. Declarants should seek the advice of the project engineers, architects and designers as well as legal counsel when seeking to establish this type of by-law. |