A recent court decision waded through the murky waters of determining responsibility for water damage in a condominium.
In 2018, the condo owner experienced a severe leak in her unit's foundation wall. Despite promptly notifying the condo association, which is responsible for maintaining common elements, no action was taken. The owner took matters into her own hands and obtained professional evaluations, revealing critical issues with the foundation wall, resulting in water damage. Despite the owner sharing this information, the association declined to act, citing concerns about depleting their reserves.
In March 2019, the owner filed a complaint against the association, alleging breach of contract, negligence, and breach of fiduciary duty. The association, relying on a liability waiver provision in their bylaws, sought to dismiss the case. The court partially granted their motion, limiting certain claims but allowing others to proceed.
The condo association argued they were protected by a specific bylaw provision which shields them from liability for damages caused by common elements, including the foundation wall. The full text of the bylaw reads:
The Association shall not be liable for any failure of water supply or other services to be obtained by the council or paid out of the common expense funds, or for injury or damage to person or property caused by the elements or from electricity, water, snow or ice which may leak or flow from any portion of the Common Elements or from any wire, pipe, drain, conduit, appliance, or equipment.
However, the crux of the owner's argument lies in the association's broader responsibilities under the same bylaw – the duty to maintain, repair, and replace common elements.
The court sided partially with the owner, acknowledging the association's failure to address the foundation wall issue. While the relevant bylaw limits recovery for the initial water damage, it doesn't absolve the association of its duty to rectify the problem. As courts continue to determine new case law, an experienced condo lawyer or HOA lawyer can help homeowners navigate through complex bylaws and ensure their property is protected.