Tarion Common Element Construction Performance Guideline

If you are a builder, property manager or condominium corporation dealing with warranty resolution related to a first or second year warranty in Ontario you need to get familiar with the new Common Element Construction Performance Guidelines released by Tarion last fall!

There has been a CPG for many years, but it only covered the kinds of concerns typically found in a single-family house. The new guideline finally covers the issues we encounter day in and day out in high rise buildings and parking garages.

The Performance Guideline provides clarity about warranty coverage and performance expectations for over a hundred typical claim items. These include things like:

• leakage through garage roofs and suspended slabs (no longer is injection sufficient in some circumstances!)
• ponding on slabs and site finishes (OK to have some limited ponding but not where people can't avoid walking)
• corrosion of painted metal elements (not within one year)
• water shedding at exterior walls (concentrated run-off to be rectified)
• excessive finish variation on balcony undersides (a uniform appearance from grade is expected)
• site plantings that die within the first year warranty (the previous CPG indicates dead plantings were to be reported in the PDI inspection, which doesn't apply to condominium common elements)
• excessive flow velocity in domestic water piping (the guideline recognizes that flow higher than anticipated in the design contribute to premature pinhole leakage)

A very exciting clarification is that if a bylaw or other legislated requirement comes into force during construction, the builder is responsible for complying with the requirement if it came into force prior to the date of registration of the corporation. This explicitly applies to things like painting of garages, guards on elevator cabs and backflow preventers but also sets a reasonable example to follow for future legislated changes. The corollary is that if the requirement comes into force after the registration date, the cost will be borne by the corporation. This is an improvement over prior interpretations which suggested that the builder might only be responsible for legislated requirements that were in force prior to the date the building permit was obtained.

Another clarification that deserves attention is that light levels must meet the code minimum requirements for the full warranty period. Previously builders would argue that light levels drop over time and that if the light levels were not sufficient at the end of the first year, then it was a maintenance issue to change bulbs. The new guideline clarifies that the design must accommodate reasonable bulb light-level degradation (which is expected) such that light levels remain adequate for the full warranty period. This provides more reasonable protection for the corporations, because, in many municipalities the corporations have an ongoing obligation to meet light levels similar to those required by code (and changing all bulbs every year is not a reasonable expectation!).

The best thing about the new guideline is that it removes some ambiguity helping create not only clearer expectations but also less friction during the resolution process. Combined with Tarion's new resolution tracking portal and the new 18 month builder repair period, the CPG should help make the resolution process much better for all involved.