Our corporation has levied a special assessment to replace windows in the building. Aren’t the windows a common element and the corporation’s obligation to replace — meaning the cost shouldn’t be assessed against the owners?
The windows in a condominium building are invariably common elements. If the windows have failed, it is the obligation of the corporation to replace them.
The cost will be part of the corporation’s common expenses, which each owner will share in accordance with the corporation’s declaration.
When paid from the reserve fund, the owners will not be assessed for the amount of the necessary window replacement. However, if the payment reduces the reserve fund below the amount required, then the owners may be assessed to restore the fund to its proper level.
If the windows haven’t failed, but the board wishes to replace them by more attractive windows — or more modern windows with more effective opening and closing mechanisms — the corporation could only replace the windows in accordance with section 97 of the Condominium Act as alterations to the common elements. Section 97 allows the corporation to make such an alteration if it is required by a mutual use agreement, to which the corporation is a party. Section 97 also allows it if the alteration is necessary to ensure the safety or security of persons using the condominium property, or of the condominium’s assets. As well, it is also allowed if the cost of the alteration is no more than one per cent of the annual budget of the corporation for the current fiscal.
The reserve fund may only be used for repairs to the common elements and cannot be used for alterations to the common elements.
If none of the conditions exist which would permit the corporation to make a common element alteration without notice to the owners, the corporation may only make the alteration by sending a notice to the owners which describes the proposed alteration and sets out the estimated cost and how the corporation proposes to pay it.
The notice must advise that the owners have the right within 30 days of receiving the notice to requisition an owners’ meeting to vote on the proposed alteration. A requisition for an owners’ meeting must be signed by owners of at least 15 per cent of the units.
The corporation could only proceed with the alteration if the owners do not requisition an owners’ meeting or if the owners do not vote against the alteration at the requisitioned meeting.
If the alteration is substantial, the corporation will not be able to proceed by sending the notice but must obtain an affirmative vote to the alteration by owners of at least 662/3 per cent of the units. An alteration is considered substantial if the estimated cost exceeds 10 per cent of the budgeted common expenses for the corporation’s current fiscal year, or is greater than an amount set out in regulations under the Condominium Act, or if the board elects to treat the cost as substantial.