Warranties, not bylaws, will determine common property
Dear Condo Smarts: Our strata council is deeply divided over who is responsible for maintenance and repairs to doors and windows. Our strata was built in 2004, and we passed a bylaw that declared the windows and the doors on the exterior of the building as limited common property. We did this so we could make owners responsible for the doors and windows of their own units.
Several owners have indicated, however, they have no intention of maintaining or repairing their windows. They have pointed out that maintaining these windows from the exterior is complicated.
A tradesperson would need a ladder or have to set up scaffolding on the common property, which could damage the landscaping or other units, for which they will not assume liability.
So we’re locked in a dispute. The exterior of the building is not being maintained, and several owners are threatening court action if we don’t get on with maintenance. Is there a solution? J.J. Fischer, White Rock Dear Mr. Fischer: To determine how the property is defined in your strata, I reviewed your registered strata plan and common amendments at the Land Title Registry office. In both your plan and in your warranty documents, which are also critical, the exterior of your apartment-style strata building is clearly common property.
The windows are outside of the dividing boundary between the strata lot and the exterior, and the warranty documents clearly define your windows as part of your common property warranty for the building envelope.
A common misconception among strata corporations is common property can be converted to limited common property simply by creating a bylaw to make it so. That is incorrect.
Bylaws determine only who is responsible for the common and limited common property and its use. To designate windows as limited common property (LCP), it would be difficult to meet the requirements of the Strata Act.
The strata must first pass a resolution that creates the LCP, and include a sketch plan that satisfies the registrar of land titles, defines the areas of LCP and specifies to which lot the LCP is allocated. Then it all has to be filed with the Land Title Registry.
Clearly your strata corporation has not met those requirements, casting doubt on the enforceability of the bylaw.
From a practical perspective, your strata owners need to rethink their decision.
A main reason we live in strata buildings is to share those duties of maintenance and benefit through lower costs by quantity negotiation.
If an owner has to replace one window it might, for example, cost $250.
The strata, however, replacing 10 windows at a time, can bring cost well below $150 per window.
The strata also controls the common area repairs and ensures that the entire building exterior is protected at the same time.
You should also read your warranty conditions. The warranty contract likely includes your exterior doors and windows as part of the building envelope under the first five-year period. By shifting the responsibility from the corporation to the owners, it is possible you may have jeopardized your warranty coverage. Contact your warranty provider and seek legal advice on how to resolve this impasse.