Part 32 published on 01/11/10
Condominium corporation not liable for damage due to leaky roof
The plaintiff owner sued the condominium corporation for damages to her unit resulting from a leaky roof. The court dismissed the claim because the damage was not due to negligence on the part of the condominium corporation. The Court said that condominium corporations are not insurers or guarantors of the common elements.
The Court also considered a “forbearance arrangement” under which the owners in this condominium had allegedly agreed not to assert certain claims against the condominium corporation. The Court held that the “forbearance arrangement” was not enforceable and did not prevent this particular claim. Again, however, the claim was dismissed because of the absence of negligence on the part of the condominium corporation.
[Editorial note: In the course of the decision, the Court said “the mere fact that the roof in this case leaked is not conclusive proof of a breach of the duty to maintain; but it does shift the onus to the condominium corporation to demonstrate due diligence.” I thought this was an interesting feature of the decision. The Court ultimately concluded that the condominium corporation’s due diligence had indeed been demonstrated, but it appears that the existence of the leak may have been sufficient to allow the Court to find negligence, in the absence of evidence of the condominium corporation’s due diligence. The Court specifically referred to the “onus on the condominium corporation to adduce evidence of such due diligence” – which is something that I haven’t seen mentioned in similar cases of this sort.]