March 2019
Some condo corporations do not have exclusive use of amenities. Rather, amenities may be shared among two or more individual condo corporations. One of the benefits of this arrangement is that residents have access to more amenities than if each maintained a separate facility.
Shared facilities may extend to roadways, chiller systems, underground spaces and mechanical rooms. Typically a committee manages, governs and operates the shared facility. This committee is likely composed of directors from condo corporations sharing the facilities. There may also be a separate property manager for shared facilities.
Shared facilities are governed by a separate agreement among participating condo corporations that specifies the legal arrangement. Among other provisions, this agreement is likely to state how each party pays to support shared facilities and how decisions are made.
Shared facility agreements may not have been drafted by those using amenities or facilities. They are often created by the developer before control of a condo corporation is handed over to condo owners. What may have appeared to be a clearly drafted agreement before shared facilities exist could appear vague and unclear once condo buildings have been populated and shared facilities utilized. There is also a possibility that a shared facility agreement favours a developer or commercial owner who retains control over part of the shared facility.
Disagreements that may arise with shared facilities can result from a poorly drafted agreement or refusal to abide by terms of the agreement. Disagreement may arise because an agreement is ignored or forgotten. The most common disagreements are likely to be over money; how much each corporation should contribute or how expenses are to be shared. Many are the result of one party not being familiar with terms of the agreement
Section 113 of the Condominium Act gives the first owner-elected board of a condo corporation 12 months following turnover to end an agreement. This requires that a corporation show that an agreement was inadequately disclosed by the developer and produced an oppressive result.
Where a shared facilities agreement exists it is enforceable so long as the agreement and terms were properly disclosed to all parties.
Most shared facility agreements require arbitration of disputes which is supported by the Condo Act.
