In co-ownerships, most water heaters (electric or gas) are installed within the apartments. In such a case, this device is an integral part of the private portions of the building. Each co-owners therefore has the responsibility to ensure the proper functioning, by checking (notably) any signs of dilapidation, and, if necessary, by replacing it at its own expense. Failing to do so, in the event of a breach, a co-owner could be held liable for any damages to the common areas of the building, as well as to the private portions owned by other co-owners, up to the amount of the deductible provided for the syndicate's insurance coverage. A look at the various technical and legal aspects relating to this device, which is essential to any residential unit.
How it works
A water heater is one of the electrical appliances most in demand in dwellings. It provides hot sanitary water that occupants use for a variety of purposes, such as showering and doing laundry.
The operation of a thermal storage water heater is simple: the water is heated in advance and stored in a thermally insulated tank. This device is equipped with a sacrificial anode of magnesium or aluminum designed to extend its lifespan. By electrolysis, the anode burns slowly, thus protecting the vitrified tank from corrosion.
In principle, a water heater does not require preventative maintenance. However, it should be visually inspected from time to time for any possible water leakage into the holding bin or on the floor. Some models require, at least once a year, to manually activate the temperature and pressure safety valve. If this valve continues to leak, even after it is activated, it must be replaced.
Although a thermal storage water heater lasts an average of 8 to 10 years, it is impossible to predict with certainty when it will need to be replaced. Therefore, warning signs of a defect require an immediate response to avoid water damages. Dysfunctional water heaters show several anomalies that need to be recognized. For example:
Replacing a water heater requires specific know-how and skills. Its implementation requires:
In divided co-ownerships, only a contractor who is a member of the Quebec Pipe Master Mechanics Corporation (CMMTQ), which holds the appropriate contractor's licence, should be called upon to install a water heater. It is not recommended for a co-owner to do it himself, because in the event of a problem, he would take full responsibility for the possible consequences.
Supported by the syndicate
Most declarations of co-ownership provide that if a co-owner neglects to carry out maintenance work in his private portion, the syndicate could be called upon to intervene and act in his place. In this regard, article 1039 of the Civil Code of Quebec was amended by Bill 16. Speaking of the community of co-owners, and by extension the syndicate, an addition at the end of the first paragraph of this article reads as follows: "The legal person must, in particular, see to it that the work necessary for the preservation and maintenance of the immovable is carried out." This would be the case if a co-owner fails to replace his water heater in a timely manner. The costs related to the work requested by the syndicate would be attributable to the co-owner caught in default. It should be remembered that there are many claims related to water heaters. They cause significant damage and havean impact on the insurance conditions of the syndicate of co-owners. Therefore the board of directors must have all the powers necessary for the maintenance and replacement of water heaters in order to ensure the conservation of a building. This includes the power of verification and the power to make the replacement in the event of default by the co-owner. This power is necessary for the conservation of the immovable and is recognized by article 1066 of the Civil Code of Quebec. This section provides that no co-owner may interfere with the carrying-out, even inside its private portion, of work required for the preservation of the immovable, decided upon by the Syndicate or urgent work. This obligation to let the work be carried out is enforceable not only against the co-owners, but also against the occupants and tenants.
Declaration of co-ownership
The By-laws of the immovable (declaration of co-ownership) generally include strict guidelines, limitations and even prohibitions on work that could be carried out in a private portion. In particular, provisions may be made for all plumbing work, in this case those related to the replacement of a water heater, to be submitted (for approval) to the Board of Directors before they can begin.
The Board of Directors must approve this work as long as the contractor selected by the co-owner:
The co-owner who wishes to have this work carried out must provide the Board of Directors with a copy of the licence held by the chosen contractor, as well as proof of his liability insurance. On the other hand, any syndicate would benefit from adopting by;laws requiring co-owners to replace their water heaters after a certain number of years.
Water heater register
In order to avoid water damages, any syndicate of co-owners should keep a computerized record establishing the age of the water heaters and their date of installation. This record should be interactive so that an alert is sent to board members or the manager to ensure that any water heater that has reached the end of its useful life is replaced. Otherwise, a formal notice should be sent to the co-owner concerned reminding him of the need to do so.
How to use it
Most declarations of co-ownership have a clause requiring any co-owner, tenant and occupant who is absent for more than a week to close their unit’s supply valve. This obligation does not apply to the power supply of the water heater. In this regard, it should be remembered that to prevent the formation of bacteria, including Legionella pneumophila, the water temperature must be kept at 60 degrees Celsius (140 F).
If you are absent for more than a month, the power or gas supply to a water heater should be interrupted, as some of the water in the tank may evaporate. As a result, the heating element could be damaged. When you get back, you'll have to restart the water heater. Two to three hours will be enough to bring the temperature of the water to 60 degrees Celsius, in order to irradiate the bacteria. After a prolonged absence, it is essential to let the hot water run from the shower for several minutes, in order to drain the water accumulated in the pipes.
Thermal storage water heaters are often singled out by insurers in multi-storey vertical co-ownerships because of the frequency of claims related to these appliances. This has a direct impact on insurance premiums and deductibles, and thus on the increase in common expenses (condo fees). Take note that most insurers require water heaters to be replaced every 8 or 10 years. Each insurance company has a specific policy on this, so co-owners should check what the syndicate's insurance contract says in terms of replacement schedules. In addition, some insurers exclude from their insurance coverage water damages caused directly or indirectly by a water heater whose date of manufacture exceeds twelve (12) years
Each co-owner must answer in his capacity as co-owner or co-owner non-occupier (rented dwelling) for the damages he causes by his own fact, but also that of the property he has in his care. This is particularly the case for a water heater. This liability is limited by the insurance coverages taken out by the syndicate. Therefore, the amounts not covered by the insurance, such as the deductible, constitute a loss which he could be held liable to the syndicate of co-owners if the latter had to undertake, at his own expense, the work for the rehabilitation of the building.
The presumption of fault established by section 1465 of the Civil Code of Quebec
Section 1465 of the Civil Code of Quebec states that:
"The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault."
Case law has already had the opportunity to apply this presumption of fault to a co-owner, for the harm caused by the fact of a property that he has in its custody and this because of the failure of a water heater.
One effect of this presumption of fault is to exempt the syndicate of co-owners from proving the co-owner's fault, as well as the exact cause of the loss, as soon as it is connected to the autonomous fact of the object. The co-owner is thus presumed to be at fault.
However, in order for the syndicate to avail itself of this provision, it must show that the damage for which it seeks compensation is related to the autonomous fact of an identified property, and that it was in the custody of the co-owner. The failure, if not the impossibility, of establishing a sufficient connection between the autonomous fact of a property and the harm suffered prevents the syndicate from relying on this presumption of fault and liability against the co-owner.
To rebut this presumption and to absolve himself of this liability, it will be up to the co-owner (or his liability insurer) to prove that he is not at fault. He will have to show that he did not commit any fault in the custody or maintenance of the property causing the damage, or that he took all reasonable precautions to avoid foreseeable danger or damage. He may also argue that the injury is the result of superior force, by the end of a third party, for example a manufacturing defect in the water heater.
These means of defense of the co-owner are not absolute, as most declarations of co-ownership provide for a clause that makes a co-owner liable, in respect of the other co-owners and the syndicate, for damages caused by a property for which he is legally responsible (e.g. a water heater) and without regard to any fault or negligence on his part.
However, this contractual liability regime has been less certain since the reform of the law of co-ownership (Article 1074.2 of the Civil Code of Quebec). Although this issue has not been decided by the courts, emeritus notary Christine Gagnon and emeritus lawyer Yves Joli-Coeur believe that this system of law would still be valid.
Water leak detectors
New technologies are available on the market to reduce the extent of water damages. The principle is simple: detection sensors are positioned near areas at risk, especially in the immediate vicinity of a water heater, sink, toilet or washing machine. These wireless sensors communicate with an electronic valve installed on the main water entrance of the dwelling. If one of the sensors detects the presence of water, it will relay the information to this valve, which will automatically shut down the water supply to the dwelling.
WHAT YOU SHOULD KNOW ! To know the actual age of a water heater, it is usually enough to look on the descriptive plate of the device (glued to the outside surface of the tank). It indicates the month and year of manufacture. However, for some models, only a serial number is listed, which will require a search on the manufacturer's website to find out its age.
WHAT TO KEEP IN MIND : More and more co-ownerships in Quebec are opting to install a system in all their units that detects water leaks. This practice has become necessary, if not essential, as several claims have had a negative impact on premiums and insurance deductibles. The experience of these systems shows, according to managers, that they reduce the number and scale of water damages.
WARNING ! To avoid water damages, water heaters must be at the top of the list of appliances to be placed under high surveillance. Identifying their installation date, along with a plumber's invoice and a replacement schedule, is a preventative approach that should bear fruit. These devices must be replaced no later than 10 years, otherwise the risk of leaks will increase significantly.
Civil liability Civil liability Civil liability insurance of the co-owner Contractual civil liability Corporation of Master Pipe-Mechanics of Québec Deductible Extracontractual civil liability Fault Hot water tank Insurance Legionella Reasonable deductible Superior force Vertical co-ownership Water leak detection system