What a Condo Act s.44 Performance Audit actually requires

The statute most condo boards only read once

Every new condominium corporation in Ontario, from the moment its declaration and description are registered, is on a clock. Inside a specific 4-month window in the first year of the corporation's existence, a board it did not yet elect must retain a Professional Engineer or an Ontario-licensed architect to perform a performance audit of the common elements. That audit becomes the corporation's official opening inventory of construction condition. Deficiencies identified in it can be pursued as warranty claims against the declarant through the Tarion Warranty Corporation. Deficiencies missed in it typically cannot.

For the owners sitting around the first AGM, the performance audit is a procedural event that happens once in the corporation's life and is then rarely discussed again. For the engineer or architect retained to perform it, and for the firm producing the sealed report, section 44 is a regulatory framework with specific statutory language, a narrow timing window, an independence requirement, and a scope it is very easy to misjudge.

This article walks through what section 44 of the Condominium Act, 1998 actually requires, who can perform the audit, what the audit covers, the timing windows under O. Reg. 48/01, and what a defensible sealed report looks like on the page. It is written for the professional being retained to do this work, not for the condominium board retaining them.

What section 44 actually says

The operative provision sits in the Condominium Act, 1998, S.O. 1998, c. 19, at section 44. The relevant subsections read:

"44(1) The board shall appoint, on behalf of the corporation, a person or persons described in subsection (2) to conduct a performance audit of the common elements before the registration of a declaration that creates a common elements condominium corporation, or after the registration of the declaration and description that creates any other type of condominium corporation.

(2) A person conducting a performance audit of the common elements shall be a professional engineer or an architect, or a partnership or corporation, some of the partners or employees of whom are professional engineers or architects.

(3) The performance audit shall be carried out, ... in the case of a corporation other than a common elements condominium corporation, at a time after the 6-month period and by the end of the 10-month period following the registration of the declaration and description."

Condominium Act, 1998, S.O. 1998, c. 19, s.44 (excerpted). Supplementary procedural requirements sit in O. Reg. 48/01 made under the Act.

Three things follow from this language, and each shapes the drafting of the sealed report.

First, the audit is mandatory. The board "shall appoint" an auditor. There is no opt-out, no threshold of value below which the requirement falls away, and no discretion to defer. Every new standard or phased condominium corporation in Ontario goes through this process.

Second, the professional performing the audit must be a Professional Engineer or a licensed architect. A technologist, a home inspector, or a warranty-adjacent contractor is not qualified to sign the section 44 report. The sealed report is an engineering or architectural work product produced under Regulation 941 and the OAA's professional practice framework, respectively.

Third, the audit covers the common elements, not the units. The common elements are the structural frame, the building envelope, the roofing assemblies, the central mechanical and electrical systems, the elevators, the parking garage, the amenity rooms, the corridors, and the exterior site works. The units, with limited exceptions for items defined as common element inclusions in the declaration, are the owners' concern and are covered by individual warranty paths rather than by section 44. Reports that stray into unit-level enumeration misread the statute.

The 6-to-10-month window

O. Reg. 48/01 and section 44(3) fix the performance audit to a narrow window: the audit must be carried out after the 6-month anniversary of the date of registration of the declaration and description, and before the 10-month anniversary.

That 4-month band exists for a reason. It is late enough in the corporation's life that the building has been occupied long enough for workmanship and systems issues to surface under real operating conditions. It is early enough that the 1-year Tarion warranty for the common elements is still in force when the audit report lands on the board's desk and can be routed to Tarion as a claims package.

The engineer retained to perform the audit should, in practice, be engaged well before the 6-month date. A common audit has a field program that takes several weeks to execute, involves multiple site visits in different weather conditions, requires coordination with the declarant to access mechanical rooms and roof areas, and produces a report that the board must have in hand with enough time to review and file warranty claims before the 1-year mark. Engagements scoped in month 5 and field-programmed in month 6, with a report targeted for months 8 to 9, leave the board a short but workable runway.

Firms that see section 44 engagements arrive in month 9 or 10 are seeing engagements that have been mis-scheduled. The field work still has to be performed inside the statutory window. Whatever compression that produces in the field program becomes a real standard-of-care question for the engineer who seals the report.

Who can perform the audit

Section 44(2) sets the professional qualification. The performer must be a P.Eng. or a licensed OAA architect, or a firm whose partners or employees include such professionals. That is the minimum.

The practical qualification is steeper. The engineer performing a section 44 audit on a 20-storey mixed-use residential building must be competent to review the structural frame, the envelope, the roofing, the mechanical and electrical installations, the elevators, and the site works. Very few individual P.Eng.s carry that breadth by themselves. Most section 44 audits are performed by a lead engineer on a multi-discipline team, with specialist input from mechanical, electrical, building-envelope, and structural practitioners. The sealed report is signed by the responsible engineer or by several engineers across their respective scopes.

Section 44 also imposes an independence requirement. The auditor cannot be, or be employed by, or hold a material interest in, the declarant or a party related to the declarant in the ways the Act defines. The statutory language is technical but the intent is straightforward: the performance audit is an arm's-length assessment, not a continuation of the declarant's own engineering process. A firm that designed the building cannot audit it under section 44. A firm that routinely performs consulting work for the declarant should decline the engagement or disclose the relationship in writing to the board before accepting. The purpose of the independence rule is that the audit is the first document in the corporation's file that is produced on the corporation's behalf, not on the declarant's behalf. If that distinction is blurred at the start, everything downstream in the warranty process inherits the blur.

What the audit covers

The scope of a section 44 audit is the common elements and, where applicable, the corporation's assets. The common elements are identified in the declaration and description. The assets are the corporation's chattel property: the equipment, fixtures, and systems the corporation owns.

A structural-firm-led audit typically groups the common elements into the following categories:

• Structural. Cast-in-place or precast concrete frame, structural steel, load-bearing walls, foundation and slab-on-grade, parking garage slab-on-structure.
• Envelope. Exterior wall assemblies, cladding, air and vapour barriers, sealants, windows and door assemblies, balcony guards, parapet assemblies.
• Roofing. Primary roof assemblies, roof drainage, amenity terrace assemblies, parapet flashings, roof-mounted equipment curbs and bases.
• Mechanical. Central heating and cooling plant, make-up air units, domestic water heating, fire protection piping and systems, plumbing mains and risers, ventilation systems, snow-melt systems where installed.
• Electrical. Main service and transformer vault, emergency power and generators, fire alarm common elements, lighting of common areas, building automation, elevator control infrastructure.
• Life safety. Exit stair and corridor construction, fire separations, emergency lighting, fire alarm device placement in common areas, sprinkler system integrity at common areas, smoke management systems.
• Vertical transportation. Elevators, elevator shafts, elevator machine rooms.
• Site and amenity. Amenity rooms, pools and exercise equipment, landscaping, paving, site lighting, site drainage, retaining structures.

The point of the categorisation is not stylistic. It aligns the audit report to the declarant's design documentation, which is organised the same way, and to the Tarion warranty categories, which also broadly align. A report that jumps between categories without a categorical skeleton produces a file the board cannot cleanly route to the declarant and that Tarion cannot efficiently triage.

The defensibility skeleton for a section 44 report

Every defensible section 44 audit report is built on a consistent documentation skeleton, applied element by element across every category the audit covers:

1. Element identification. What was reviewed. Identified precisely enough that someone reading the report two years later can locate the same element. "The parapet flashing at the north face, east of grid line 6" is useful. "The roof" is not.
2. Observation. What was observed in the field. Photographs where the observation is visual. Measurements and instrument readings where the observation is instrumental. Dates and weather conditions where they may be relevant to the reliability of the observation.
3. Reference. The design document the element is being measured against, or the code or standard clause that applies. For elements where the declarant's drawings are the controlling specification, the drawing and detail identifier goes in the reference. For elements where a code or standard governs, the clause citation goes in the reference.
4. Finding. Whether the element, as observed, conforms to the reference. The possible findings are straightforward: conforming, deficient, requiring further investigation, or outside the scope of the audit.
5. Recommendation. What, if anything, the auditor recommends. For deficiencies, whether the item should be pursued under warranty, remedied by the corporation, or monitored. Where a deficiency is significant enough that the auditor recommends the board file a Tarion claim, that recommendation should be explicit.
6. Signature and seal. The engineer's or architect's signature and seal on the report as a whole. Multi-discipline reports are frequently signed by several professionals across their respective scopes. The section 44 audit signed by a single engineer on a multi-discipline building typically involves that engineer having coordinated specialist input from colleagues, which the report should reference.

This skeleton is the same skeleton that applies to an OBC 1.2.2.2 field review report, a Tarion warranty report, or a CCDC 2 deficiency list. The section 44 audit is a cousin of all of those, executed at a specific moment in the building's life and tied to a specific warranty trigger. For the broader framework on how this documentation skeleton carries across disciplines, see our companion piece OBC 1.2.2.2 is not only for structural engineers.

Where the audit meets the Tarion warranty file

The section 44 audit and the Tarion common-elements warranty are designed to fit together. The common-elements warranty under the Ontario New Home Warranties Plan Act, coordinated by Tarion, runs for one year on most items and longer for structural and envelope components. The section 44 audit is delivered to the board in month 8 to 10, leaving a short but sufficient window to file claims before the 1-year common-elements warranty expires.

Tarion's warranty categories do not map one-for-one to an engineering discipline-based report, but they overlap substantially. The items in the audit that the engineer flags as declarant-responsibility deficiencies become the board's opening slate of Tarion claims. Items the engineer flags as corporation-responsibility are items the corporation will pay to remedy. The engineer's clarity on which items are which, and why, materially shapes what the board can recover through warranty and what it cannot.

A well-executed section 44 report uses language that a Tarion adjudicator can read directly. It avoids subjective language such as "poor workmanship" or "typical for the vintage" without supporting observations. It cites specific declarant drawings and specific code or standard clauses when it classifies an item as deficient. It provides photographs that document the observation at the time of the audit, not reconstructed after the fact. Any one of those attributes can carry a warranty claim or sink one.

What AI-assisted drafting does and does not change

The section 44 audit is, at its core, a structured narrative document produced from field observations and photographs. The structural engineer walks the parking garage slab, photographs cracking patterns, measures crack widths, compares them against the declarant's reinforcement drawings, and reaches a finding. The mechanical engineer opens the fire pump room, reads gauges, compares the installation against the permit drawings, and reaches a finding. At the end, those observations and findings are assembled into a multi-hundred-page sealed document.

The drafting step, the assembly of field observations into a sealed narrative report, is exactly the work Fermito supports for Sealed-Work Drafting. The engineer's field notes, photographs, measurements, and findings are the substantive content of the report. An AI drafting tool that organises those inputs into the firm's house report format, with the defensibility skeleton applied consistently element by element, accelerates the production step without changing any of the substantive engineering content.

The regulatory framework for that kind of AI-assisted drafting is discussed in detail in our companion piece What PEO Regulation 941 already says about AI-assisted drafting. The short version: the engineer who seals the section 44 report assumes responsibility for its content under Regulation 941, section 53. Whether the first draft was produced by a junior engineer, a technologist, or an AI drafting tool is not the regulator's question. Whether the sealing engineer reviewed the output and took responsibility for it is. The standard of care applies identically.

What AI-assisted drafting does change is production economics. A 120-page section 44 audit report that a firm would previously assemble from dictation and hand-formatted Word templates over a week of associate time can instead be drafted in a single structured generation pass, with the engineer reviewing, editing, and sealing the output. The field observations, the photographs, the professional judgments remain exactly where they have always been: with the engineer in the field. The drafting burden at the end of the process moves off the firm's associate time and onto the review discipline of the sealing engineer.

A template, not a substitute

Fermito maintains a discipline-specific Condo Act s.44 Performance Audit template on the sealed-document templates page, available to any Ontario firm performing this work. The template ships as a Word file sized for a P.Eng. seal, organised by common-element category, with the defensibility skeleton applied to each element. It is a starting point, not a substitute for the engineer's field work or judgment.

Firms that want the template tuned to their house format, their seal layout, and their discipline-specific vocabulary can request a template pack on the sealed-document templates page. The pack lands in the firm's format in 2-4 weeks and is wired into Fermito's generation flow from day one.

The section 44 audit is a once-per-corporation event that produces the opening page of a condominium's warranty history. The report, sealed properly and documented defensibly, determines what the board can recover and what it cannot. The statute has been in force since 1998. The drafting tools available to the firm performing the work have changed considerably in the last year. The defensibility skeleton has not.