Last August we blogged about several incidents of breaking glass on balcony railings in some downtown Toronto condos. As a result of those incidents two class actions have been commenced against the developers and the declarant of the Murano Towers and the Festival Towers. The architects as well as the manufacturer/installer of the glass railings were also sued.
As set out in the claims, after several incidents of falling glass in or around August, 2011, the doors to the balconies were sealed from the outside so that they could not be opened from inside the unit and a notice was posted on the balconies prohibiting access to the balconies. Each lawsuit is claiming $15,000,000 in general damages (plus another $4,000,000 for punitive damages and $1,000,000 for costs) on behalf of the owners and tenants of units in the buildings who were deprived of the loss and enjoyment of the balconies. In addition, the claims also allege that the unit owners suffered diminished loss in value and in rental income of their units.
Generally balconies do not form part of the unit, but are exclusive use common elements. We haven’t checked the declarations of these condominiums but wonder if there is anything in them that permits access to the common elements to be temporarily denied for the purposes of maintenance and repair or to prevent personal injury or damage to property. Would this affect these claims? Also, in view of the realities of the Canadian winter how much use and enjoyment of the balconies does a unit owner get during the winter months? It will be interesting to see what transpires with these two class action suits.