July 13, 2020 by Greg Meckbach
A British Columbia strata unit owner who suffered water damage after a toilet tank ruptured is unable to recover the cost to replace the unit’s toilets from the strata corporation.
In 2019, a Crane toilet storage tank failed in a strata unit owned by Harvey and Cynthia Rasmussen. The rupture caused water damage in their unit and in the unit below.
The Rasmussens and the strata corporation disagreed on whether the corporation or the unit owners are liable to replace the toilets.
In Rasmussen v. The Owners, Strata Plan VIS 1611, released July 9, B.C. Civil Resolution Tribunal member Trisha Apland ruled in favour of the strata corporation.
One of the strata’s bylaws stipulates that the corporation must have insurance on common property as well as on fixtures on a strata lot — if they were built or installed by the original owner-developer as part of the original construction on the strata lot.
The Rasmussens and the strata corporation agree that the toilet tank that failed in 2019 was 25 to 30 years old and was an original toilet installed by the owner-developer. So the Rasmussens claimed that the strata corporation owes them $519.15 for the cost to replace two toilets. The unit owners said if a strata corporation has an obligation to insure original fixtures, it also has an obligation to repair or replace those fixtures.
The CRT disagreed, citing Wawanesa Mutual Ins. Co. v. Keiran, released by the B.C. Supreme Court in 2007. That case arose from a pipe leak that damaged original fixtures in a strata lot. The cost of the repairs was less than the $10,000 deductible on the corporation’s insurance, so the strata corporation paid for the repairs itself and sought reimbursement from the unit owner.
In the Keiran case, the strata had a duty to insure the fixtures under section 149 of the B.C. Strata Property Act. That law requires a strata corporation to have insurance on common property, common assets, buildings shown on the strata plan, and fixtures built or installed in a strata lot, if the fixtures are built or installed by the owner-developer as part of the original construction.
But in Keiran, the court ruled that repairs to the original strata lot fixtures are the responsibility of the owner or the owner’s insurer.
So this means the duty to insure does not impose an obligation on the strata to replace the original fixtures within a strata lot, CRT member Apland wrote in Rasmussen. So both the bylaws of the Rasmussens’ strata corporation — as well as the Strata Property Act — mean that the strata corporation must insure against a major peril caused by an original fixture. But it does follow from this that the strata must insure the replacement value of the original fixture itself.
Toilets are not listed in Bylaw 8.1 of the Rasmussen’s strata corporation’s rules. That bylaw stipulates that the strata corporation “must repair and maintain common assets, common property, restricted parts of limited common property, and the parts of a strata lot limited to the structure and exterior of a building, chimneys, stairs, balconies and other things attached to the exterior of a building, doors, windows and skylights on the exterior of a building or that front on the common property, and fences, railings and similar structures that enclose patios, balconies, and yards.”
Water damage claims of over $100,000, arising from failures of supply lines feeding water into toilet tanks, are common, said Paul Okrutney, a metallurgist who founded Toronto-based insurtech Mitigateway, in an earlier interview. Gradual failure of supply lines often goes unnoticed by consumers until it’s too late and water is coming out of the hose that is supposed to be feeding water into the toilet tank, Okrutney said this past February Feb. 5 during a panel held at CatIQ Connect, produced by Catastrophe Indices and Quantification Inc. Okrutney was commenting in general and not on any particular case.
Feature image via iStock.com/anaimd