Deck fixes are management’s to shoulder

Our condo townhouse was originally built with patios behind each unit, but no decks. Over the years, many owners paid to have the condo corporation install decks. Recently an owner was advised that, since the deck was not original to the unit, it is the owner’s responsibility to carry out repairs. Is that correct? Prior to the 2001Condominium Act, owners had no right to alter the common elements and could not install common-element decks.

Subsequently, an owner could only alter the common elements with the consent of the board. Also, in the registration against the title to the owner’s unit, there had to be an agreement between the owner and the corporation containing certain provisions — including whether the corporation or the owner would be responsible for repairs.

The alteration does not belong to the owner, but is part of the common elements that it altered. With no agreement requiring the owner to repair the alteration, the repair is up to the corporation.

Both the unit owner and the corporation who permitted the deck construction without the required agreement were at fault. But, in the end, the absence of the agreement making the owner responsible for repairs of the deck means it is up to the condo corp.

That situation cannot be changed, even with a declaration amendment which purports to render deck repairs the obligation of the owners. That is because, while the Condo Act permits the declaration to alter the respective repair, it also clearly states that the corporation’s obligation to repair the common elements cannot be changed. Lawyer Gerry Hyman is a former president of the Canadian Condominium Institute and author of Condominium Handbook. Send questions to gerry@gerryhyman.com.