Volume 25, Issue Number 3, Spring 2021
Purchasing/Living in a Condominium

Townhouse Condominiums

More Than Meets the Eye

By Joel Berkovitz | Other articles by Joel Berkovitz

A Lot More Differences Than Meet the Eye

If you were to go up to the average person on the street and ask them what they think a 'condominium' is, there is a good chance they will tell you it is a high-rise apartment building. They may be surprised to learn that of the nearly 12,000 condominium corporations in Ontario a substantial portion of them are actually townhouses.

The Condominium Act, 1998 (the "Act") does not differentiate between townhouses and high-rises (or any other building type for that matter) – its application is the same regardless of buildtype. In fact, the legislation does not even include the word 'townhouse'.

Yet anyone who has lived in or provided service to a townhouse condominium knows that they are dramatically different than high-rises. As a condominium lawyer and a former director of a townhouse condominium, I've seen many of these differences first hand.

Townhouse owners often have very different expectations of their boards and managers than high-rise unit owners. Many view their townhouse as being more akin to a private, freehold property than the 'apartment-like' high-rise units. Beyond the basic fact that most townhouse condominium corporations do not have elevators, lobbies, concierge desks, or the type of recreational facilities often seen in high-rise buildings, there are a number of other factors which differentiate townhouse condominiums.

Many of these differences stem from how unit boundaries are defined in townhouse condominiums.

Most high-rise condominiums have unit boundaries where the unit ends at the backside surface of the drywall, and excludes doors, windows and structural components.

While some townhouse condominiums adopt similar boundaries, there is far more variability in their boundary definitions. You will find many townhouse condominiums which define their units to include some or all of the following: windows, doors, structural walls, basement floor slabs, attic spaces, roof structure and shingles, eavestroughs, driveways, and even yards.

Because responsibilities for maintenance and repair are largely tied to whether a component is part of a unit or the common elements, the unit boundaries have far reaching implications. If you live in or work on a townhouse condominium, ask yourself if you can confidently identify who is responsible for the following in your corporation:

• Repairing or replacing doors and windows;
• Washing windows;
• Cleaning dryer vents;
• Shovelling snow from steps and walkways;
• Mowing front/back lawns;
• Trimming trees;
• Repairing fences;
• Fixing shingles and repairing roofs; and
• Insulation and venting issues.

The answers may not always be obvious and can require a detailed review of the corporation's governing documents. For example, a rear yard may be exclusive-use common element, but the declaration may require the unit owner to undertake some or all of its maintenance.

The unit boundaries also impact on what projects undertaken by owners require board approval. Owners generally have wide latitude to make changes to their unit, but changes which impact upon the common elements will require the board's approval (and compliance with section 98 of the Act). For example, if the townhouse has a terrace or backyard which is part of the unit the owner can largely do what they want with it unless the corporation's governing documents provide otherwise; if that terrace or yard is exclusive-use common element, however, the owner can't do anything significant to it without the board's consent.

Because alteration agreements can be costly and time consuming, some townhouse condominiums choose to prepare a bulk section 98 agreement, which covers a range of permissible alterations (these can be anything from retractable awnings to landscaping to French doors) and register it on title to all of the units who may wish to make such alterations in the future. This can greatly simplify the alteration process - rather than requiring a customized agreement for the alteration, there can be some simple documentation placed in the unit file indicating that the owner has undertaken one of the permitted alterations from the bulk agreement.

The unit boundaries also impact on the application of the Human Rights Code in condominiums. While a corporation has a duty to comply with the Code and to accommodate any owners with a disability, a corporation is only required to provide such accommodation with respect to the common elements. So, if an owner requires a ramp be installed to get into their townhouse, who is responsible for that ramp (the owner or the corporation) would depend on whether the area where it is required is part of the unit or the common elements.

Unit boundaries also impact the reserve fund study (it must properly identify all of the common elements) and the standard unit definition (it should cover all of the unit components the corporation wishes to be responsible for repairing in the event of an insured peril).

Mistakes with respect to unit boundaries can be costly. Many readers will already be familiar with the saga of Orr v. MTCC 1056 where a purchaser bought what they thought was a 3-storey townhouse, only to later discover that the 3rd storey was an unauthorized conversion of a common element attic. The condominium corporation inspected the unit but failed to note this unauthorized change on the status certificate. When this mistake was discovered later by the new owner, it spawned a multitude of legal proceedings involving the corporation, its management, the purchaser, and their lawyer which took years to resolve and cost hundreds of thousands of dollars.

The nature of townhouses also impacts on condominium governance issues, and in particular compliance matters. Take noise complaints as an example. In a high-rise building there are often staff on-hand who can investigate and verify a complaint of excessive noise. In a townhouse, however, there are often no on-site staff.

So how does a condominium deal with a noise complaint where the complainant says that they heard loud music late at night, but the unit where the sound supposedly originated from responds saying that they were only listening quietly early in the evening? In these cases, it is often the complainant who has to take on the burden of documenting the problems so that they can provide evidence in support of a compliance application.

Townhouse condominiums also often face unique access issues. Many common element building components can only be accessed from within the unit, which can make scheduling and coordinating maintenance or repair work difficult. Owners may also not understand that their corporation has a right of access to their unit and may change their locks without informing management. Because there is no on-site staff, a changed lock may not be discovered until someone needs to enter the unit in an emergency (such as a flood) and is unable to do so.

Lastly, because townhouse condominiums typically have fewer units than their highrise counterparts, they often run on very tight budgets. When unanticipated costs arise there are fewer units to spread the cost among, which can result in budget shortfalls or special assessments. Longterm planning and healthy reserves take on increased importance in townhouses.

Because townhouse condominiums have unique challenges, it is critical for boards to find appropriate managers, engineers, lawyers, and other professional advisors who understand townhouse condominium living and can help the board to navigate these waters.