Canadian Underwriter
News

Condo flooding liability 101


April 18, 2019   by David Gambrill


Print this page Share

You are the owner of a condo unit. The toilet in the condo unit above you overflows, causing water damage to your ceiling and floor. No, your upstairs neighbour does not have to reimburse you for your $1,000 insurance policy deductible, unless you can prove he was negligent.

“It can be surprising and upsetting for owners to learn that they are responsible for the cost of repairs to their strata lot even though the source of the damage originated in someone else’s strata lot,” the B.C. Civil Resolution Tribunal ruled Wednesday in Zale et al v. Hodgins. “However, in the absence of negligence, nuisance or a specific bylaw making owners liable for damage that originates in their strata lots, the applicants and their insurer are responsible for the cost of the damage even though they did nothing to cause it.”

Clayton Zale and Eileen Kelly lived in a condo unit below Mark Hodgins. Overnight on Sept. 2-3, 2017, Hodgkin’s toilet leaked, causing damage to the ceiling and floor of Zale and Kelly’s condo unit. Hodgins reported the leak to the property manager the next day by email. A plumber determined that the toilet’s fill valve and tube needed to be replaced, which the plumber did.

Zale and Kelly made an insurance claim, which the insurer paid. The policy included a $1,000 deductible, which Zale and Kelly paid. They sought to recover the deductible from Hodgins in small claims court.

“On Apr. 17, 2018, [Hodgins’s] adjuster told [Hodgins] that he could expect [Zale and Kelly’s] insurer to claim the cost of the repairs,” B.C.’s small claims court noted. “However, [Hodgins’s] adjuster was of the view that [Hodgins] was not legally responsible for the damage because he was not negligent. [Zale and Kelly’s] insurer eventually abandoned its claim for reimbursement, presumably agreeing with [Hodgins’s] insurer that the respondent was not negligent.”

Zale and Kelly did not claim that Hodgins was negligent. Instead, they relied instead on the condo building’s bylaws, which state that an owner must not use their strata lot in a way that:

  • causes a nuisance or hazard to another person.
  • unreasonably interferes with the rights of other persons to use and enjoy another strata lot.

Zale and Kelly further relied on a bulletin written by a lawyer for the Condominium Home Owners Association (CHOA), which discusses a strata corporation’s responsibility to pay for repairs to a strata lot. In particular, they relied on a statement in the CHOA bulletin that said determining who must pay for repairs is governed solely by a strata’s bylaws. But the tribunal noted that the article does not refer to the responsibility of one unit owner to another when it comes to determining who pays for repair costs.

“I find that the strata’s bylaws that [Zane and Kelly] rely on do not apply to this dispute,” the B.C. Civil Resolution Tribunal found. “The strata’s bylaws govern the ways that the respondent can use his strata lot. In other words, they govern his behaviour. The strata’s bylaws do not govern whether the respondent has to reimburse the applicants for damage that originated in the respondent’s strata lot regardless of the respondent’s behaviour.”

The tribunal also shut down the argument that Hodgins owed the claimants the money for their insurance deductible because he caused a nuisance or a hazard to another person. “A nuisance occurs when a person unreasonably interferes with the use or enjoyment of another person’s property,” the tribunal found. “However, if the person is not aware of the problem that causes the interference, and has no reason to know about the problem, they will not be liable because they did not act unreasonably.”

In this case, there was no evidence that Hodgins knew or should have known that the fill valve in his toilet would fail and cause a leak, the tribunal ruled. Hodgins is therefore not liable for the leak.


Print this page Share

12 Comments » for Condo flooding liability 101
  1. Lynn says:

    Condo living is not the wonderful world that everyone thinks it is. Many seniors believe they can just turn the key, lock the door and travel for the next few months. This is a very dangerous assumption, and this story about water damage, is great evidence that any and every home must be checked by a responsible adult every 24 – 48 hours. Condo living does not relieve you of taking care of your financial assets, in this case, your HOME!
    There is a different time frame with each insurance company, stating how often an unoccupied home must be checked. BE sure to ask your insurance broker or agent, what the time frame is with your insurance company.

    • Reexe says:

      Checking every 24 hours is not practical or even possible especially living in a rural setting. In our policy that language pertains to claims resulting from freezing/bursting of pipes during the heating season when an insured is away for extended periods. Freezing of pipes isn’t an issue in a strata condo anyway so it’s a moot point. The temperature in a strata condo unit isn’t going to fall to subzero temperatures. The 24 hour checking alludes to having a responsible person checking to ensure the heating system is properly functioning to that part of the building that is subject to freezing pipes. The devil is in the details and each insurer is different. Some insurers have many devils in the details so as brokers we are responsible to steer our clients in an exodus away from such insurers. That’s our job. I’ve turned away business simply because none of the companies I represented was suitable to their needs. Can’t find someone to check your house every 5 or 24 hours while you’re away? Well, don’t buy that policy! Find another company that has no such requirements! What?!! Turn away a premium? YES! THAT IS A BROKERS RESPONSIBILITY – your license obligates you to do just that!

  2. TBA says:

    I am so pleased the Tribunal, is cutting the crap out and starting to settle these actions as the Strata Property Act is written.

    The Act is extremely clear in BC, the issue has been with Lawyers trying to keep in the loop of litigation.

    The problem with insurers, is they follow what the legal community states, which is not correct. The legal community is only protecting their interests and nothing more.

    The only thing I wish is that Insurers, Adjusters & Brokers read the parts of the Act that are all applicable, and it should become abundantly clear how losses should be settled.

    DEFINITIONS in the Act are very important and will guide any lay person.

    The Key that everyone misses is “responsibility” as opposed to “negligence”

    I am sure we will soon hear from the Legal community before they get cut off at the knees.

    READ THE ACT, IT IS EXTREMELY CLEAR and UNLESS, the actual STRUCTURE is affected, the unit owner is 100% responsible for most anything.

    The other misinformation over all the years is how the Deductible of the Strata is applied, that is incorrect as well. READ CAREFULLY. Again, this is very clear. BOTTOM Line, the unit owner is responsible, as it should be.

    All the strata issues in BC would be resolved, if only Lawyers stayed out of it.

    GREAT JOB TRIBUNAL

    • Reece says:

      So, if a sprinkler discharges through no fault of the owner and causes $5 million in damages to the complex you’d believe it’s fair to hold the unit owner “responsible” – to bankrupt him even though there was no wrong doing on his part? In such a scenario an owner wouldn’t be able to seek relief through his own insurer under liability since he wasn’t deemed liable – just “responsible”. That makes no sense. That would send chills through the housing market if the public learned of this. The decision is a correct one. In Canada to hold a person accountable we need to prove negligence – if you can’t prove wrongdoing or negligent omission then you shouldn’t be able to successfully sue that person. The Act you quoted was over-reaching and I’ve always told my clients that it won’t stand in court and I’m happy to be proven correct. The language used was meant to protect the insurance companies from having to pay out. It was a loop hole that seemed to be deliberately created so that the companies wouldn’t have to pay a dime. A typical Layperson wasn’t aware of this loop hole. Now it’s closed.

  3. Living in Condominium does not relieve you of taking care of your financial assets, in this case, your HOME! There is different time frames with each insurance company, stating how often an unoccupied home must be checked. BE sure to ask your insurance broker or agent, what the time frame is with your insurance company.

  4. A.G. says:

    Hello!

    A few days ago I received the new strata insurance document where I found a new item in the policy – “sprinkler discharge”. The deductible is $100,000. I immediately consulted my home insurance company and received the following response:

    “-For the sprinkler discharge deductible, our underwriters have not yet been able to determine if it falls within the definition of our current coverages because we have not yet been provided with an explanation from the strata insurers as to under what circumstances this deductible would be charged. This would be something that would be a good idea for you to clarify with your insurer regardless, so it might be a good idea to ask your strata or your property management company if they have any additional information.”

    Anyone knows what this “sprinkler discharge” is about. The big problem is that I can’t purchase the insurance to cover this deductible and therefore may simply go bankrupt if something like this happen.

    I would really appreciate any information.

  5. Unfortunately, these types of Condo issues happen more often than not. Owning strata has its inherent exposures to damage from other tenants above and below. Some insurance companies have additional policies available to cover most of these issues which will certainly increase premiums. We’ve found in most cases repair companies will absorb the $1000 deductible upon repair as a courtesy discount.

  6. Patricia says:

    There was a leak underneath my dishwasher. I only noticed this, as the laminate flooring was beginning to warp. I immediately had the valve at the connection to my dishwasher switched off. The unit below subsequently had a stain and damage on their ceiling. Management sent their plumber in to investigate my suite. Plumber agreed, that the leaking was coming from the dishwasher, and also stated that the original build ‘soft copper’ pipe attached to the dishwasher ought to be the braided mesh type, which is flexible. I called in a plumber, who checked for other leaks, removed the soft copper pipe, and added a new connector valve at the junction. Management informed me that I would be responsible for the damage downstairs. We have not even addressed the damage to my flooring yet! I presumed our condominium insurance would cover this type of an event. My owner’s insurance also does not cover water damage. However, downstairs owner’s insurance has a 1,000 deductible. They too believed these repairs would be covered under our condominium insurance. There was certainly was no ‘negligence’ on my part, whatsoever.

    This, I am sure happens to many other owners in condo dwellings. We all have the same pipes, installed at the time of building. ( Actually, we had a lot of work done in this building, related to missing water access junctions. My suite was chosen, by the mistake of the plumbers), to install said junction, to allow global flushing. I never made a complaint or sued anyone for negligence (builder), or the plumbers, when they chose the wrong suite, and put 2 large holes in the walls of my laundry room and main bathroom, before finding a viable position! Our buildings plumbing had not been flushed in all the 11 years since it was built.

  7. BJ says:

    My problem is my neighbours keep raining on me. Each time I have to make a claim on my insurance and I wonder will I still be able to buy insurance or afford it after several claims. I have never had a claim that was caused by me but now I am not claim free. It may not be negligence but if I was in my car and someone hit me it would be up to the other driver to be charged with the accident. How is this different than a neighbour causing damage to my suite. The wrong person is being punished for something that is not their fault.

  8. Kirk Dyck says:

    The above condo suite had a failure of their water tank which of course allowed water to flood into my condo. The damage resulted in the floor all being replaced, through my insurance. Not ever thinking of the condo above causing damage I had a two thousand deductible. The saying that there was no neglect on condo above so I’m on the hook for my repairs. It all seems unfair as the source was not in my condo.

Have your say:

Your email address will not be published. Required fields are marked *

*