Canadian Underwriter

Landlord sued over $16,000 water leak wins appeal

November 28, 2018   by Greg Meckbach

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A major water leak from a Surrey, British Columbia strata unit has spawned debate among judges over whether landlords are liable in such cases.

Crystal Thomas was renting a condo unit in Surrey in the summer of 2015. A large amount of water from her unit leaked into several other units, one of which was owned by Ge Zhang.

The strata corporation arranged for emergency repairs. Zhang was responsible for repair and remediation to his unit, Judge Jennifer Duncan of the Supreme Court of British Columbia wrote in Shahgaidi v. Zhang, released Monday.

Zhang sued Thomas and won a default judgement of $17,394.95. But Zhang could not find Thomas in order to collect the money that the court awarded to Zhang. So Zhang sued the owners – Kambiz and Maria Shahgaidi – of the unit that Thomas was renting.

“The cause of the water leak was never determined, and, though the likely source of the water was from the bathroom, no broken water pipes or plugged toilets were identified,” Judge Duncan wrote.

In a ruling released this past May, the Provincial Court of B.C. ruled in favour of Zhang, ordering the Shahgaidis to pay Zhang $16,028.95.

That ruling was overturned on appeal in Judge Duncan’s Nov. 26 decision.

A landlord could be liable for “nuisance” on the part of a tenant but only if that nuisance was a  “natural and necessary result of what the landlord has authorized,” Judge Duncan wrote, quoting case history.

Originally the provincial court ruled that the lease agreement between the Shahgaidis’ and Thomas contemplated the use of water – and therefore the “nuisance arose from acts which the landlord had contemplated the tenant would engage in.”

“But the egress of water was not the necessary consequence of providing water for residential use,” Judge Duncan wrote.

The provincial court judge applied the test of landlord liability “too broadly,” Duncan wrote.

“In many ways, this is a novel set of circumstances, where a strata property owner is attempting to hold a neighbouring owner liable for a nuisance that arose from the actions of a residential tenant,” Duncan wrote. Much of the case history has involved suits against commercial property owners.

Among the decisions Duncan cited were Durling v. Sunrise Propane Energy Group Inc., released in 2012 by the Ontario Superior Court of Justice. That case arose from a massive propane explosion in 2008 near the Downsview airfield in Toronto. A nuisance lawsuit against a landlord was tossed out of court. In Durling, an Ontario judge ruled that the landlord could only be liable if it was “within the immediate contemplation” of the landlord that the tenant would allow illegal truck-to-truck transfers of propane on the property.

In Durling v. Sunrise, the nuisance “did not result from the tenant operating the property in the manner contemplated in the lease” and “was not a necessary consequence of the mode of occupation contemplated in the lease,” Judge Duncan wrote in Shahgaidi v. Zhang.