DAMAGE IN A DIVIDED CO-OWNERSHIP: co-owners, administrators and managers, beware of water damage!

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02 December 2017
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It is obvious that the occurrence of damage affecting our dwelling is an inconvenience and an important source of unpleasantness for its owner. Luckily, the majority of owners of rental dwellings do not have to deal with such situations regularly.

In divided co-ownership, the syndicate of co-owners, members of the board of directors and sometimes its property manager are called upon to react to accidents in order to ensure the restoration of the parts of the building affected by the damage done, in the privative as well as the common portions. The syndicate must apply to an insurer for cover against all the usual risks, including fire and damage caused by water. Indeed, damage caused by water, coming either from parts of the plumbing (sink, toilet, bathtub, shower, feed or drain) or from natural water infiltration points through the envelope of the building, constitute an important source of damage that can be caused to the building.

However, we think that awareness-raising and prevention measures can help reduce the amount of water-related damage or its severity.

The board of directors and the manager, whatever the case may be, will be able to make the co-owners aware by means of press releases, or by a special mention at a meeting of the co-owners, that they must use bathtubs, showers and sanitary facilities of the condo units, and any other property that contains or consumes water, with care to avoid water discharges due to:

- Overflow of a sink, a toilet or a bathtub;
- Water discharge from the shower due to a lack of water tightness of the shower cabin, or failure to properly close the shower curtain, whichever the case may be;
- Water leakage due to poor maintenance of these elements, which is the responsibility of the owner of the unit;
- Poorly connected or maintained water supply pipe to the dryer or the dishwasher;
- Breakage, poor maintenance or misuse of an aquarium or waterbed.

In some cases, the cause of the damage could be a water supply pipe, sometimes hidden behind the visible surface of the gypsum, located within the boundaries of the privative portion of a co-owner which could only supply him. Although damage may be caused by the breakdown of such a conduit, and this even in the absence of any action on the part of the co-owner, under the conditions of many deeds of co-ownership, his liability will nonetheless be incurred by the fact that this conduit is an element included in the privative portion, which therefore falls under the responsibility of the co-owner.

The liability of a co-owner in such cases could be withheld under a clause in the deed of co-ownership in the meaning of the following:

“The enjoyment and use of the privative portions are subject to the following conditions:

..... Any co-owner shall be liable to the other co-owners and the syndicate for damaging consequences arising from his fault or negligence and those of one of his employees or from the fact of a property for which he is legally responsible......

Given this type of use clause in deeds of co-ownership, it would therefore be important to involve co-owners in this prevention process in order to enable them to reduce the risks that involve their responsibility by being more careful and take precautions which are required when using these elements of their privative portion.

It must also be kept in mind that the liability of the co-owner may be incurred by his tenant’s fault or by property belonging to the tenant, and this by a special clause to that effect, or by default, of the rule in section 1057 of the Civil Code of Québec which stipulates that the regulations governing a building, which contain the conditions for the enjoyment of the privative and common portions, are enforceable against the lessee of a fraction as soon as a copy of these is given to him and the co-owner must ensure that the tenant respects them.

An accident or damage caused by water may also occur as a result of a broken water pipe or related equipment being part of the common portions of the building. Under section 1039 of the C.c.Q., maintenance of the common portions of the building is the responsibility of the syndicate, and under section 1077 of the C.c.Q., it is liable for damage caused to third parties (co-owners, their tenants or any other person) resulting from a defect in the design, construction or lack of maintenance of a common portion of the building. The syndicate must therefore take the necessary preventive measures and maintain the common areas of the building in order to minimize the risks, while being aware that an unforeseen event may cause an accident to which the syndicate has an obligation to respond in order to fulfill its duty to maintain the entire building, including all common and privative portions.

If you have any doubts on this subject-matter, do not hesitate to contact our team of lawyers specializing in real-estate law and divided co-ownership.

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