Falling glass can cause legal headaches

Uncertainty around which statutory warranty period applies to faulty towers
Wednesday, February 29, 2012
By Daniel Boan

Glass falling from condominiums in downtown Toronto has been widely publicized.

Given the obvious safety concerns that falling glass presents, immediate and reasonable corrective action should be taken to avoid possible injuries to unit owners or third parties, and the possibility of resulting lawsuits.

Generally, a condominium corporation’s declaration, bylaws and applicable legislation oblige it to maintain and repair common elements after damage in order to maintain the value of the building. As a result, when condominium terraces and balconies are designated as common elements in the declaration and bylaws (as they typically are), a corporation is responsible for the cost of repairing any glass installed on balconies or terraces that shatters. This is a cost that it did not likely anticipate.

Statutory and contractual warranties may assist in covering the cost of glass repairs. In Ontario, the New Home Warranties Plan Act provides new homeowners with one to two-year warranty protection against defects in work and materials, and seven-year warranty protection against major structural defects. Warranty claims must be made within the applicable warranty period to Tarion Warranty Corp., which administers the Act and ensures legitimate claims are covered by the new homebuilders or Tarion itself.

It is not clear which statutory warranty period will apply to the occurrence of falling glass given the lack of specific case law and Tarion direction. At first glance, it appears glass installed on condominium balconies and terraces may be considered part of a condominium’s exterior cladding or building envelope.

Tarion’s construction performance guidelines defines exterior cladding as, “All exterior wall coverings, including siding and above-grade masonry as required and detailed in the relevant sections of the Ontario Building Code.” It defines building envelope as follows: “The wall and roof assemblies that contain the building space and include all those elements of the assembly that contribute to the separation of the outdoor and indoor environments so that the indoor environment can be controlled within acceptable limits.”

However, glass installed on condominium balconies and terraces does not clearly fall into either category since the glass may not be considered a wall covering and it is not used to separate the outdoor and indoor environments for the purpose of controlling the indoor environment. If the glass is considered to be part of the building’s exterior cladding, then a two-year warranty covering defects in work or materials which result in the detachment, displacement or deterioration of exterior cladding would apply. If not, then a one-year warranty covering defective work and materials would be applicable.

A two-year warranty could still apply if the defective glass causes water penetration into the building envelope. Therefore, each circumstance of falling glass must be examined to determine which warranty period applies. Out of caution, a corporation and its property manager should consider reporting the incident as soon as possible.

In addition to statutory warranties, condominium corporations and property managers should become familiar with contractual warranties that may be available to unit owners and the corporation. For example, an agreement of purchase and sale entered into by a unit owner typically provides a one-year warranty in favour of the owner with respect to the building construction. In addition, most developers require their general contractor, subtrades and suppliers to provide extended warranties with respect to certain aspects of condominium construction, which may include the installed glass. These extended warranties are typically assigned to the corporation once the building is turned over by the developer. The warranties may indicate if any contractors are answerable to the corporation should an issue arise.

Whenever an issue of falling glass arises, corporations and property managers should consider engaging a glass expert and experienced litigation counsel given that there may be more than one contractor involved in the construction and installation of the affected glass. Litigation counsel can assist by identifying potential legal issues and preserving a corporation’s legal rights, and both the expert and counsel can help develop a plan that will coordinate condominium repairs with any recovery efforts to assist in defraying the immediate and overall financial impact on unit owners.

Daniel Boan is a partner in the construction, engineering, surety and fidelity practice group of Borden Ladner Gervais LLP.

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