It’s one of the worst feelings you can experience as a condominium owner.
You come home to your unit after a long day at work and you want to unwind, only to find a puddle of water in your kitchen. You can’t relax after all. Instead, you have a leak to investigate. The first question you’d like answered is: Where did the water come from?
Well, don’t automatically assume the leak originated from the unit directly above yours. Just as excessive noise sources are difficult to trace, leaks can be too. Usually, leaks emanate from somewhere in your own unit or from the unit directly above yours. Not always, though, and this was illustrated in a recent legal case in Toronto — Roa vs. TSCC-1764. As pointed out in a tweet by Denise Lash of the Lash Condo Law firm in Toronto, a condo unit owner sued his condominium corporation after the corporation registered a lien against his unit (suite 602) for non-payment of repair costs relating to a leak in the unit below (suite 502). The corporation took the position that the unit owner was responsible for these repair costs as he failed to properly maintain his unit and, in particular, the ensuite shower in the unit.
“The owner of suite 602 was away approximately eight months a year since he purchased the unit from the developer about four years earlier, and as a result, he made limited use of the showers in the unit,” Lash explains. “The leaks in suite 502 continued after caulking and silicone applications in suite 602 (which was recommended by the corporation’s plumbers) and even after the owner of suite 602 stopped using the ensuite shower. The plumbers hired by the condominium corporation indicated that on two visits they could not find any leak emanating from suite 602, and did not produce any report detailing the source of the leak and how it was stopped.
“The Small Claims Court found that the owner of unit 602 was not liable for the repair costs relating to the leak in suite 502 as the corporation did not provide any “unambiguous and straightforward” evidence as to the source of leak. In arriving at this decision, the judge noted that the parking garage, the gym and other units in the building also experienced leaks.”
Lash reports that the plaintiff unit owner was awarded damages in the amount of $5,958 consisting of the lien amount, the amount paid to the corporation’s plumbers, the plaintiff ’s legal costs relating to the lien, and $1,500 for inconvenience. The unit owner also received $1,800 for costs and disbursements for the two-day trial.
“Whenever there is a leak that causes damage to the common elements and/or other units,” Lash says, “management and the board should be checking the condominium declaration and by-laws to determine if there are provisions in the documents that assign responsibility for payment of damages caused by the leak.”
That’s not all, though. Lash cautions that a thorough investigation needs to be conducted to determine the cause of the leak, and condo management should obtain a written report from a plumber or other independent qualified professional that clearly spells out the cause of the leak.
Don’t let leaks dilute your condominium experience. Face the reality that, at one point or another, they could very well happen in your unit. Be aware that water can be damaging almost anywhere. Be prepared, though. Know how to deal with the issue. Have insurance. Get legal assistance, if need be. Most of all, though, be sure to ascertain who is responsible for the leak and where the actual source of the leak is.
MARTY YORK is an experienced condominium manager in the GTA. He is also Senior Co-ordinator of Media and Sports for B’nai Brith Canada and a former columnist/ associate sports editor with The Globe and Mail and Metro newspapers. His columns appear regularly in Condo Life. email@example.com
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