Part 49 published on 01/02/15
Strata council’s failure to address water damage “significantly unfair”
This strata property suffered from water ingress issues. The petitioners were the owners of one of the units. Their unit suffered damage – on three separate events – between 2009 and 2012.
The petitioners argued that the strata council acted in a “significantly unfair manner” within the meaning of section 164 of the Strata Property Act, in three ways:
a) By relying on one of the corporation’s by-laws to refuse payment of the petitioners’ restoration costs when the council knew or ought to have known that the by-law was in contravention of section 3 of the Strata Property Act;
b) By breaching the council’s duty to maintain and repair the common property in failing to permanently solve the water ingress problem in a reasonable and timely manner; and
c) By historically paying the repair costs of other unit owners in similar circumstances while refusing to pay the petitioners’ remediation costs.
The Court began by confirming that this was a proper claim under section 164 of the Strata Property Act.
The Court then denied the claims of the petitioners in relation to the “first event”. The Court said that the strata corporation was unaware of the water ingress issue until shortly after the first event and had then attempted to repair the problem “within a reasonable period of time”. However, the Court held that the strata corporation was liable for the damage (caused to the petitioners’ unit) as a result of the second and third events. The Court said:
Had (the first event) been the end of the water ingress issue, the (strata corporation) would have been correct to deny the petitioner’s claim. I agree with the respondent that a strata corporation is not an insurer against all damages suffered or losses incurred by the individual unit owners…In this case, the respondent is not an insurer against all risks of flooding or water ingress into (the petitioners’ unit).
The balance of the petitioners’ claim thus stands or falls on whether they have proven that the (strata corporation) acted in a manner that was significantly unfair to them by breaching a duty to maintain and repair the common property and refusing to pay the remediation costs associated with the Second Event and the Third Event.
I am satisfied that they have.