Water damage: who fault is it?

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).

Place at the origin of the disaster

The determination of what is private, common, common for restricted use is important in determining civil liability in the event of the occurrence of a disaster generated by water damage. Indeed, according to the qualification of the installation at the origin of the disorders, the commitment of the responsibility will fall on:

  • Or to the syndicate of co-owners when it is a common portion that is the cause of the damage. For example, it can be a pipe that bursts into the common areas because of the frost;
  • Either to the occupying or non-occupying co-owner when it is a private installation under his custody and his responsibility that is the cause of the damage. For example, a leaking water heater or water infiltration through the seals around the sanitary facilities;
  • Either to the occupant other than a co-owner (e.g. a tenant or occupant) when the installation that is the cause of the damage is in his custody and responsibility. For example: a drain pipe from the washing machine that breaks or the bathtub that overflows;
  • Either to the syndicate of co-owners or to the co-owner or the occupant when the installation is a common portion for restricted use according to the following situations.

Special case of common portions for restricted use

In the event that the place at the origin of the disaster is a common portion for restricted use, civil liability shall be established as follows:

  • If it is the installation that is the cause of the damage, the syndicate of co-owners will be liable. For example, a defect in the sealing of a window causing damage to the apartment on the lower floor.
  • If it is the improper use that is made of the installation that is the cause of the damage, the co-owner or occupant will be liable. For examples, an overflow of flower planters as a result of excessive watering or water infiltration generated by a balcony that is not cleared of snow;  

Civil liability insurance of the co-owner 

Each co-owner is required to take out civil liability insurance coverage  (the minimum mandatory amount of insurance for which is determined by government regulation) against the risks of civil liability for which he must be responsible in his capacity as co-owner occupant or co-owner non-occupant (rented dwelling).

In particular, it covers damages caused by the occupants of your private portion or by yourself to the common or private portions. This coverage includes the losses which are not covered by the insurer of the syndicate, such as the deductible of the building insurance of the co-ownership. For example, if the deductible is $50 000 and the damages $75 000, the insurer will pay only an indemnity of $25,000.

In this case the syndicate is entitled to claim the amount of the damages for which he has not been indemnified ($50,000) from the co-owner at fault, who will in turn be reimbursed by its civil liability insurance, if any. This insurance is therefore crucial, and it is foolhardy to be without it. In fact, this coverage will protect a co-owner from having to pay, out of his own funds, damages of many thousands of dollars.

 Syndicate liability insurance

The law obliges any syndicate of co-owners to take out insurance covering its civil liability towards third parties. Most declarations of co-ownership also require it. In terms of water damage, this insurance is crucial, both for the co-ownership and for the co-owners themselves. It offers protection to all co-owners when their liability is incurred collectively - towards third parties - including the co-owners or occupants of the building. The insurance taken out by the syndicate covers in particular the risks related to the common parts of the building (e.g. breakage of a pipe located in the common areas). It protects that trade union if it is held liable for having caused damage to a third party, for example bodily injury or property damage.

http://www.condolegal.com/images/Boutons_encadres/Bon-a-savoir.png WHAT YOU SHOULD KNOW!  A syndicate of co-owners may rely on the presumption of fault stipulated by article 1465 of the Civil Code of Quebec, in order to establish the liability of a co-owner. The co-owner can reject this presumption and exonerate himself from liability by proving that he has not committed any fault.

http://www.condolegal.com/images/Boutons_encadres/A_retenir.pngWHAT TO KEEP IN MIND: Civil liability insurance for co-owners has become compulsory (art. 1064.1 of the Civil Code of Quebec) on October 15, 2020. It covers the liability of co-owners towards third parties. Most declarations of co-ownership require co-owners to take out and maintain civil liability insurance, whether or not they reside in the building.

http://www.condolegal.com/images/Boutons_encadres/Attention.jpgWARNING! The insurance regulation  published in the Gazette officielle du Québec on April 15th, 2020, stipulates that the minimum amount of liability insurance that a co-owner must hold is:

  • 1 million, if the building has fewer than 13 fractions used or capable of being used as a housing unit or for carrying on a business;
  • 2 million, if the building has 13 or more fractions.

 

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