A follow-up on Bill 122: safety requirements that could be expensive (1 of 2)

Published on by Me Annie Lapointe notaire

Topic(s): Regulation

Source: Messier Soucy Avocats

A follow-up on Bill 122: safety requirements that could be expensive (1 of 2)
In December 2010, Bill 122, being the Act amending the Building Act relating mainly to the modernization of the safety requirements, came into effect without leaving the population indifferent. On one hand, let us remember, because this legislation followed upon regrettable accidents which cost the life of two people. On the other hand, because the regulation which was going to follow was likely to bring with it important costs for the owners.

In the first of the incidents, a concrete flagstone was detached from an underground parking, crushing the car of a man and according to the coroner, constructional defects and deficient maintenance were determining. In the second case, it was a concrete panel which was detached from the 18th floor of the frontage of a hotel, crushing a woman mortally. The installation of the concrete panels would not have been done properly according to the indications. This being without counting the many incidents which occur each year without however always harming a victim. Let us underline, besides that, that realized before 1976, these two constructions were not regulated by the Building Code of the Régie du bâtiment du Québec. In both cases also, the recommendations of the coroners were, in particular, to envisage measures of inspection and a programme of maintenance for buildings of five floors and more.

The draft regulation, expected for several months, have been published last June the 20th in the Gazette officielle du Québec. The Act to amend the Building Act mainly to modernize safety standards thus adds a chapter named Building to the Safety Code.

The Minister of Labour took care to recall that the old regulatory provisions were more than 30 years old and did not meet the safety requirements anymore, as shown by the accidents which have occurred lately. That also highlights the responsibility of the owners in matters of maintenance and of verification of the buildings they own.

This Act will be the standard on which the municipalities will have to base themselves to adopt their own regulations. Let us recall that they will be able, according to article 193 of the Building Act, to adopt equivalent or more severe standards.

Mrs Lise Thériault, the Minister of Labour, envisages a maximum cost of 243 M$ over a period of 5 years for all the owners of the buildings that are concerned. However, it seems that this amount would be smaller in fact, since some of the prescribed improvements could be or would have been made anyways, whether considering the end of the lifetime of the equipment, or to conform to the already existing municipal regulations or the requirements of the insurers, in particular.

APPLICATION

According to the project presented to the public, the regulations would basically apply to all buildings and equipment intended for the use of the public. In the Building Act, it applied to a building used or intended to be used to shelter or receive people. However, there is a clear exemption in particular for residential buildings of less than 3 floors or less than 9 dwellings, including one-family housing.

OBLIGATIONS

As we expected, the major obligation and the very idea of the regulations seem to take shape around the general article of obligatory maintenance in good operating condition, safety and cleanliness of the buildings or the equipment intended for the use of the public.

Housing frontages

A standard of maintenance for the frontages of 5 floors and more above ground-zero is essential. These must “be maintained in order to be free from any defect that could compromise safety or that could contribute to the development of dangerous conditions” according to article 371 which will be added to the Safety Code.

Thus, a register must be kept on the premises of the building, containing certain precise information for purposes of consultation by the Régie du bâtiment, such as the coordinates of the owner, the plans for the building work of the frontages, the technical information and descriptions relating to the modifications and repairs. Also, there should be a description of repeated repairs made to regulate the same problem as well as the verification reports of the frontages.

On the level of inspections, every 5 years, a verification report from an engineer or an architect indicating that the frontages of the building do not present any dangerous condition is required. The owners will then be able to benefit from certain recommendations aiming at avoiding the development of dangerous conditions. The first report must be carried out at the latest on the day of the 10th anniversary of the date of construction of the building. For buildings that are more than 10 years old on the day of the entry into force of the regulations, a deadline is envisaged according to the age of the building.

What is meant by a dangerous condition is described in the regulations as being when an element of one of the building’s frontages could detach itself from the building or break down in an imminent way.

If one of these dangerous conditions is detected, emergency measures to ensure the safety of the occupants and the public must be taken and the Régie du bâtiment must be informed. A professional must then write, within 30 days, a description of the corrective work to be carried out and also determine a deadline to be approved by the Régie du bâtiment. A confirmation of the end of the dangerous situation at the finishing of the necessary works will be finally essential.

Level Parkings

The requirements as far as the maintenance of the underground or above-ground level parkings with concrete flagstone, in which riding surface does not rest on the ground, are similar to the existing requirements for the frontages. It is the same for the register which must be kept as well as the concerning measures that must be taken following the detection of a dangerous condition.

On the other hand, the regulation adds an annual verification on behalf of the owner, which will be the subject of a verification card, in addition to a thorough verification every 5 years by an engineer, but also following any event that could affect its structure. Also, the first verification report must be submitted between 12 and 18 months following the end of its construction. For the level parkings of more than a year old at the time of the entry into force of the regulations, a deadline is planned for the inspections depending on the building's age.

BUILDINGS WITH CONDOS

It results from the express exclusion of residential buildings of less than 9 dwellings of the application of the regulations that a building having dwellings is regarded as being for the use of the public, being used for sheltering or receiving people. It has allowed to us to believe, without more specifications, that a building with condos is then subjected to the law and to the regulations therein, being a residential building, under the condition that it has more than 2 floors, or more than 8 dwellings.

Whatever the scale of the building held in co-ownership, it is advised to maintain strict practices in regards to maintenance of the building, in particular due to the duties of the Board of Directors of the syndicate of co-ownership, and to preserve the collective investment. The buildings held in divided co-ownership which do not have a budget of contingency funds for a program of inspection and the planning of major works might have to think of it. It would be interesting to harmonize these measures of maintenance with the rules regulating divided co-ownership which should possibly be brought up to date in the Civil code of Quebec. Thus, the notebook of maintenance which is a practice of management in certain co-ownerships could become a very useful tool in the majority of the cases, even when the buildings aren't held in divided co-ownership.

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