When property damage is caused to a dwelling it's definitely a source of trouble, inconvenience and a nuisance for the owner. Fortunately, the majority of property owners don't have to face such situations every day.
In divided co-ownership it's the syndicate of co-owners, the members of the Board of Directors, and sometimes the property manager who must react to disasters in order to ensure that repairs are made to the common and private portions of the building affected by the loss. It's the syndicate's duty to take out insurance covering all the usual risks, including fire and damage caused by water. Damage caused by water, originating from either plumbing (sinks, toilets, bathtubs, showers, water line or drain), or natural water infiltration through the building's exterior, results in an important source of damage which can be caused to the building.
However, it's our view that measures to increase owner awareness and prevention can help co- ownerships reduce the number of losses caused by water, or their seriousness.
The Board of Directors and the property manager, should inform the co-owners by means of official communiques, or by addressing the issue at the annual general meeting of the co-owners, that they must use their unit's bathtub, shower and sanitary facilities, 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 from shower due to leaky shower stalls, or because of an improperly closed shower curtain;
Water leakage due to inadequate maintenance of the elements which are the unit owner's responsibility;
Improperly attached or poorly maintained washing machine or dishwasher drains;
Breakage, poor maintenance or improper use of an aquarium or a waterbed.
In certain cases, the cause of the damage could be a water supply pipe, which are sometimes hidden behind the visible surface of the drywall, but within the boundaries of a co-owner's privative portion, and which could serve only this portion. Although a loss can be caused by the breaking of this type of pipe, even in the absence of any act of the co- owner, under the terms of many declarations of co-ownership, the co-owner will be liable by virtue of the fact that this pipe is an element included within the privative portion, which falls under the responsibility of the co-owner.
In such cases the co-owner could be clearly liable if the declaration of co-ownership contains a clause like this one:
“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 damage caused through his fault or his negligence and those of one of his employees or agents, or by the autonomous act of a things for which he is legally responsible.
(...)``
Taking into account this type of clause which is typically contained in declarations of co-ownership, it's important to make clear to the co-owners in your prevention plan that they could be liable in order to enable them to reduce the risk of liability by being more attentive and taking the precautions which are essential when they use these elements of their privative portion.
It's also important to remember that a co-owner could be held liable for an act or fault of his tenant, or by the autonomous act of a piece of property belonging to the tenant, either by virtue of a particular clause to that effect, or failing this, by article 1057 of the Civil code of Quebec which stipulates that the building bylaws, which contain the conditions of enjoyment of the privative and common portions, are binding on the tenant of a fraction from the time that a copy is provided to them. The co-owner must make sure that his tenant respects them.
Should you have any questions on this subject, don't hesitate to contact our team of lawyers specialized in real-estate law and divided co-ownership.