It is obvious that the occurrence of a disaster affecting our dwelling is a disadvantage and an important source of nuisance for the owner. Fortunately, the majority of the owners do not have to face such situations regularly.
In divided co-ownership it are the syndicate of the co-owners, the members of the Board of Directors, and sometimes the real-estate manager who have to react to disasters in order to make sure that the necessary reparations of the parts of the building touched by the disaster as well the privative and common portions are carried out. The syndicate must subscribe with an insurer to a policy covering all the usual risks, including fire and damage caused by water. Indeed, damage caused by water, coming either from elements of plumbing (sink, toilet, bathtub, shower, feeder pipe or drain), or points of natural water infiltration through the envelope of the building, constitute an important source of damage which can be caused to the building.
However, we are of the opinion that measures of awareness-raising and prevention can help co- ownerships to decrease the number of disasters caused by water, or their seriousness.
The Board of Directors and the manager, if necessary, could make the co-owners aware by means of official statements, or by a particular mention within the framework of an assembly of the co-owners, that they must use the bathtubs, showers and sanitary facilities of the units, as well as every other item which contains or consumes water, carefully in order to avoid water discharges due to the following causes:
Overflow of a sink, toilet or bathtub;
Discharge of water of the shower because of the perviousness of its cubicle, or because of an improperly closed shower curtain, if such would be the case;
Water leakage due to bad maintenance of these elements, which falls to the owner of the unit;
Badly fixed or badly maintained water connection or drain supply of washing machine or dishwasher;
Breaking, bad maintenance or bad use of an aquarium or a waterbed.
In certain cases, the cause of the damage could be a feeder pipe of water, sometimes hidden behind the visible surface of the gypsum, located inside the limits of the privative portion of a co-owner, which could serve only this portion. Although a disaster can be caused by the breaking of a conduit of this kind, and even in the absence of any act on behalf of the co- owner, under the terms of many deeds of co-ownership, his responsibility will nevertheless be committed by the fact that this conduit is an element included in the privative portion, which thus falls under the responsibility of the co-owner.
The responsibility of a co-owner in such cases could be retained under the terms of a clause of the declaration of co-ownership:
“The enjoyment and the use of the privative portions are subject to the following conditions:
(...)
2) Each co-owner remains responsible, with regard to the other co-owners and of the syndicate, for the detrimental consequences caused through his fault or his negligence and those of one of his employees or by the fact of a good for which he is legally responsible.
(...)
Taking into account this kind of clause of use in the declarations of co-ownership it would thus be important to imply the co-owners in this process of prevention in order to enable them to reduce the risks which commit their responsibility while being more attentive and taking the precautions which are essential when they use these elements of their privative portion.
It should also be reminded that the responsibility of the co-owner could be committed through the fault of his tenant, or by the fact of a good pertaining to the latter, and this because of a particular clause to this end, or failing this, by the rule of article 1057 of the Civil code of Quebec to the effect that the regulations of the building, which contain the conditions of enjoyment of the privative and common portions, are opposable to the tenant of a fraction as soon as a specimen of them is given to him, and the co-owner must make sure that his tenant respects them.
In case of doubt about the subject, do not hesitate to communicate with our team of lawyers specialized in real-estate law and in divided co-ownership.