Definition : Loss - Water damages

L'avocat émérite et secrétaire général du RGCQ, Yves Joli-Coeur aborde dans cette vidéo des réclamations  pouvant survenir en copropriété. 

After a water damage, the ultimate goal of the syndicate and its co-owners: to find themselves in the same situation as they were in before the disaster took place. Due to its legal structure, the rehabilitation of common and private portions can be particularly complex in a divided co-ownership. Therefore, it should be taken care of by a qualified entrepreneur in the field. Situations vary from claim to claim, depending on the parts of the building affected, the extent of the damage and the source of the water, which may be clean or contaminated. This stage usually consists of four phases: 1) Emergency work, 2) Damage assessment 3) Compensation 4) Rehabilitation work.

Water damage is the most common loss in co-ownerships.The concept of water damage also includes the liability of the syndicate, the co-owner and the tenant, who could be engaged in the event of damage suffered by third parties. The question of who is responsible for this constantly arises. However, it is necessary to know the law applicable to the culprit. Other considerations affect both the insurer of the syndicate and that of the co-owners concerned, in order to determine who will pay what. However, water damage can originate from a private portion, but also from a common portion (roof, façade, terrace, sewage discharge column that crosses the apartments, terrace).  

Gérer un sinistre ne se résume pas à appeler son assureur et attendre la suite des choses. En cas de sinistre, seriez-vous prêt à y faire face?

Les chauffe-eau installés dans les parties privatives d'une copropriété doivent être remplacés à temps, afin d'éviter un éventuel dégât d'eau.  

A bathtub or a washing machine that overflows into the apartment below, a hot water tank that conks out and spills down six floors: losses involving the civil liability of a co-owner are many co-ownerships. And they are expensive! This is why the amount of insurance premiums and deductibles have increased significantly in recent years. Worse still, some insurers no longer want to insure co-ownerships, because of a loss ratio that has become out of control. This situation is directly related to the insurer of the syndicate, which is almost always called upon to cover a loss, when damage has been caused to the common and private portions. Thus the question of who is responsible arises. It is also necessary to know the applicable law to the owner at fault. Other considerations affect both the insurer of the syndicate and those of the co-owners concerned, to determine who will pay what?  

Almost every insurance policy includes deductibles, the amounts of which vary depending on the risk insured. For example, the deductible for water damage is usually higher than that for fire. The amount of the deductible will be deducted from any compensation paid. Its purpose is to make the insured responsible, by making him take charge of part of the repairs of the damage caused by the disaster.  The advantage for the syndicate is to see its premium reduced. In co-ownerships, deductibles are a factor in the Building insurance, and in the third party liability insurance of the syndicate, directors, meeting officers, co-ownership manager and of the condo manager. Regarding co-owner’s insurance, generally each home insurance policy contains one or more deductibles for various amounts according with the nature of the loss.

After being victims of a loss, the members of the board of directors and the affected co-owners are often caught off guard. How will things unfold? There is no need to worry or panic, because in principle, once the notice of loss completed, various stakeholders get involved: the insurer of the syndicate, but also that of co-owners and lessees, who will respectively designate their own claim adjuster. Generally the co-owners affected by a loss, as well as the syndicate, believe that making a claim is always the right thing to do. This is true in many cases, but sometimes the syndicate might want to refrain from doing so.  

21 septembre 2019 — Un calfeutrage (scellant) en bon état participe grandement à l’étanchéité d’un immeuble. Tout syndicat de copropriétaires a intérêt à s’assurer que ce produit offre un rendement optimal, faute de quoi les administrateurs pourraient devoir engager des travaux de réparation très coûteux.

L’obligation du Syndicat d’entretenir les parties communes, plus particulièrement les parties communes à usage restreint, a fait couler beaucoup d’encre depuis la réforme de 1994. Souvent, les administrateurs se font tirer l’oreille lorsque des copropriétaires réclament l’exécution de certains travaux majeurs, soit un balcon sérieusement endommagé ou, comme c’était le cas dans l’affaire MARCHAND, pour une verrière qui est la source constante d’infiltration d’eau(1).  

The concept of water damage refers to the damage caused to property by the action of water: it can be a pipe that bursts because of the frost, the drain pipe of the washing machine that breaks or the bathtub that overflows. Often impressive, water damage is probably the most recurrent problem in co-ownership. As proof, over the past ten years, the proportion of this type of loss has more than doubled. They thus represent the first cause of loss. They are also becoming more and more expensive, whether for syndicates or their insurers. In order to manage the consequences of water damage upstream, you will find below sub-sheets dealing with this issue.    

A co-owner has repeatedly caused several water damages  in our building, due to his negligence. This resulted in a surcharge for the syndicate's insurance.   Question:  Can the board of directors claim the full amount from the co-owner who caused the loss?

Article 7 of the Charter of Human Rights and Freedoms guarantees the inviolability of the dwelling. In principle, no one can have access to the apartment of a co-owner without his consent. However, it was rightly held that this rule was not absolute. This is why most declarations of co-ownership provide that a co-owners, tenants or any other occupant of the immovable must leave, at all times, a duplicate of the keys to the board of directors or the person mandated to keep the keys. In the event of emergency work (for example during water damage), the co-owners are required to leave free access to their private portions to a representative of the syndicate. It should be noted that the Civil Code of Québec governs, in harmony with the Charter of Human Rights and Freedoms and the general principles of law, persons, relations between persons, as well as property.

The condo manager’s tasks are numerous. Therefore, his civil liability could be engaged. As a mandatary of the Syndicate of co-owners, the condo manager is required to fulfill the terms of his mandate. He is thus liable for damages that may result from the non-performance or improper execution of his mandate. This means that he incurs liability in two ways, in contractual civil liability towards the one who mandated him, namely the Syndicate of co-owners and in extracontractual civil liability towards a co-owner or a third party who would suffer damage as a result of a fault. It is therefore imperative that he takes out civil liability insurance for the duration of his service contract.  

Water damage has just occurred in my private portion. Question: Should I call my insurer, my plumber or my lawyer?