CONDO LAW
Common expense fees can't be withheld
February 27, 2010
Gerry Hyman
SPECIAL TO THE STAR
Q: Our board has refused to repair leaks in the common element roof of our townhouse. Can we withhold our common expense contributions until the repairs are carried out?
A: No. Your common expense contributions must be paid notwithstanding a failure by the corporation that results in damage to your unit. The Condominium Act provides that an owner is not exempt from making common expense contributions even if the owner has a claim against the corporation.
Failure to pay on a due date will automatically create a lien against your unit. The corporation's costs to register and enforce the lien will be added to the amount secured by the lien which can be enforced if necessary by the sale of your unit.
You should examine the declaration schedule that sets out the boundaries of the units to ensure that the roof is part of the common elements.
If it is you could engage a lawyer to bring a court application for a compliance order under Section 134 of the Condominium Act as a corporation's failure to repair common elements is a breach of the act.
If the roof is part of your unit the declaration might provide that the corporation is nonetheless responsible for roof repairs. In that event you could require mediation with the corporation and, if necessary, arbitration as set out in Section 132 of the act.
Send your questions to gerry@gerry
hyman.com or fax to his attention at 416-925-8492.
Lawyer Gerry Hyman is an expert in condo law and appears every other Saturday in New in Homes & Condos.
Toronto Star