Post by: Greg Carpenter
The regulations to the Condominium Act of Ontario (the “Act”) prescribe two forms of Schedule G Certificates of an Architect or Engineer that are required in condominium declarations:
- Certificate of Architect or Engineer (Schedule G to Declaration for a Standard or Leasehold Condominium Corporation) (Under Clauses 5(8)(a) and (b) of O.Reg. 48/01 or clause 8(1)(e) or (h) of the Act) (formerly Form 2 and referred to in this blog as “Form 2”); and
- Certificate of Architect or Engineer (Schedule G to Declaration for a Common Elements or Vacant Land Condominium Corporation) (Under Subsections 40 (11) and 56 (7) of Ontario Regulation 48/01 and under Clauses 8 (1) (e) and (h) or Clauses 157 (1) (c) and (e) of the Act) (formerly Form 17 and referred to in this blog as “Form 17”).
Form 2 is required for standard condominium declarations and leasehold condominium declarations. Form 2 is also required in all amendments to a declaration adding phases to a standard phased condominium. Form 17 is required in the declaration of a common elements condominium or vacant land condominium.
There is also a Schedule G Statement of a municipality which is required for amendments to the declaration of a phased standard condominium. This municipality Schedule G does not have a prescribed form. Despite the fact the Act does not exempt the amendment for a final phase from including this municipality Schedule G, it is not required for such final phase.
We will not be examining the Form 17 Schedule G (common elements and vacant land condominiums) in detail in this blog post. We intend to address that Form in a future post.
These Schedule G forms are “prescribed” by the Regulations under the Act and cannot be changed without Ministry approval. In our experience, Ministry approval is not granted readily. However, we have had success in obtaining approval for wording changes in cases where a situation was clearly not anticipated when the Regulations were drafted.
Some Registry/Land Titles Office examiners have rejected the Form 2 submitted with a declaration or amendment for technical review if the alternate choice in Paragraphs 4, 5, 8 or 10 has been deleted and not left in the Form without the box ticked off. Other examiners accept the form with the alternate choices deleted. This gives rise to a whole other discussion of the complete lack of uniform interpretation of legislation by the Land Registry offices. Each office appears to operate in isolation of the others and one never knows if what is acceptable to Registry Office A will be accepted by Registry Office B.
There are a number of situations where completion of the Form 2 Schedule G is not straight forward:
1. Paragraph 1 of Form 2 says the exterior building envelope is weather resistant if required by the construction documents and has been completed in general conformity with the construction documents.
How does one certify in special situations such as:
2. Paragraph 2 of Form 2 says that except as otherwise specified in the Regulations, floor assemblies are constructed to the sub-floor.
- What happens in the case of a non-residential condominium where floors are not required to be in place until after registration of the condominium? In our view the architect or engineer can still sign Schedule G in such circumstances even though there is no floor in place as the Regulations to the Act provide the lowermost floor does not have to be in place with respect to non-residential condominiums.
3. Paragraph 6 of Form 2 says all installations with respect to the provision of water and sewage services are in place.
In our view the services need to be at least installed to the unit boundary or meter, as the case may be. The Regulations to the Act do not require units to be finished to the point where all the internal plumbing is completed.
4. Paragraph 8 of Form 2 says all installations with respect to the provision of air conditioning are in place or, alternately, there are no installations with respect to the provision of air conditioning.
If there is an obligation to have air conditioning for each unit or if the project specifications indicate air conditioning is a “standard feature”, there is little doubt the architect or engineer must confirm each unit is served by an operational air conditioning unit.
However, it is not unusual for air conditioning to be an optional extra. Therefore, at the time of condominium registration it is quite possible some of the units may not have air conditioning, either because the buyers of those units did not choose the air conditioning option or because the units are not sold.
In our view, the architect or engineer needs a clear, unequivocal written statement from the builder as to which of the units are required to have air conditioning, either because air conditioning is a standard feature, is required by the municipality (in case of noisy sites) or because the air conditioning “option” has been chosen. The architect or engineer then needs to inspect each of the units that is to have air conditioning and ensure the air conditioning equipment is in place and operational.
5. Paragraph 9 of Form 2 says all installations with respect to the provision of electricity are in place.
We think the lateral lines need to be to the electrical panels of the units and those panels have to be in place. However, we do not think the lines have to run beyond that.
6. Paragraph 11 of Form 2 says except as otherwise specified in the Regulations, the boundaries of the units are completed to the drywall (not including taping and sanding), plaster or other final covering, and perimeter doors are in place.
- What does this mean where unit boundaries are not in whole or in part dry walled or have other final coverings? Many unit boundaries have nothing to do with walls or other features that might be dry walled. In addition, some condominium units’ walls are not dry walled but are covered with plaster or brick or other substance. Based on our discussions with the Ministry it’s clear the drafter of this paragraph simply screwed up and made a bunch of erroneous assumptions (welcome to the Condominium Act). This paragraph can be interpreted to say that whatever features are monumenting unit boundaries must be in place. This has been confirmed during discussions with Ministry staff.
There is nothing on Schedule G that indicates what property the Schedule is intended to cover. This is a significant concern. How does the signatory know which property the Schedule he or she signs is going to be used for? It would be very possible (although completely inappropriate) for a builder to keep extra copies of signed Schedule G from Project A and use them for Project B.
We suggest the signatory add a short description of the property in the vicinity of her or his signature. We have not had any issues in being able to register declarations with Schedule G’s that have been altered to add a description of the property to which it is intended to apply. This description can either be a short legal description, an address or a combination thereof.
Watch for our upcoming blogs addressing additional issues and points about Forms 2, 17 and other Schedule G issues matters on our website www.rcllp.ca.