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Condominiums - Ontario New Home Warranty Plan Act (ONHWPA). Muskoka Standard Condominium Corporation No. 51 v. Tarion Warranty Corporation
In Muskoka Standard Condominium Corporation No. 51 v. Tarion Warranty Corporation (Div Court, 2023) the Divisional Court considered an Ontario New Home Warranties Plan Act (ONHWPA) appeal, here from a LAT s.11(1) ruling involving deficiencies in a condominium's common areas. In these quotes the court sets out relevant ONHWPA procedures:[25] Tarion is the not-for-profit corporation designated by the Ontario government to administer the Ontario New Home Warranties Program (“ONHWP”) under the Ontario New Home Warranties Plan Act (“ONHWP Act”) [3].
[26] The ONHWP imposes certain mandatory warranties on new home vendors in Ontario and provides for the payment of compensation by Tarion to new homeowners whose vendors have failed to honour their warranties. The definition of new homes includes condominium units, as well as the common elements of a condominium.
[27] To qualify for statutory warranty coverage, notice must be provided to Tarion within the times and in the form set out in the Condominium Act and the ONHWP Act.[4]
[28] Section 44 of the Condominium Act requires that a PA must be completed by an engineer or architect. The purpose of the PA is to determine whether there are any deficiencies in the common elements that may give rise to a claim under the ONHWP.
[29] Section 44(5) describes steps that one must take in conducting the PA, including the requirement to conduct a survey of unit owners to determine whether they have any damage to their units that may be caused by defects in the common elements, and whether they have observed any defects in the common elements.
[30] Section 44(10) states that the filing of the PA with Tarion is deemed to constitute a notice of claim under the Condominium Act.
[31] In making a claim with respect to its common elements, the condominium corporation must show that there is a deficiency in the common elements that is covered by the vendor’s statutory warranties. If Tarion agrees, the vendor of the condominium is offered an opportunity to resolve the breach. Should it fail to do so, then Tarion will resolve the breach directly with the condominium corporation.
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