Building Clarity on Condo Bylaws

A common condo owner / condo board discretion tale: a condo unit owner recently changed their washing machine in their suite. Unfortunately, as the individual unit owner replaced their machine, the hose used to connect to the water supplywas made of “cheap” material and burst, causing water to leak down to the unit below it, damaging the below unit owner’s ceiling and floor where the water leaked.

While this may seem like a simple case of unit owner negligence, where all associated maintenance and remediation costs would fall on the “offending” unit owner, it’s not as cut and dry as it seems on the surface.

This scenario happens more often than one would think, so let’s discuss what the issues are and why “negligence” isn’t always the case.

Condo owner negligence defined

What must first be proven by the condo board is that the unit owner who installed the new washing machine was negligent when picking their new machine AND in installing it. However, negligence is when one fails to exercise a degree of care considered reasonable under specific circumstances, which then results in unintended injury or damage to another party. Here, the condo board must establish beyond a shadow of a doubt that the unit owner responsible for the leak:

Didn’t take specific measures to ensure a leak would not happen
Wilfully caused the damage to another property
Was responsible for the specific location of the leak versus the condo corporation’s responsibility

Where we get into the weeds in determining negligence is:

Were the building bylaws clear on specific types of materials that could be used for appliances?
Was the unit owner aware of these bylaws and, if they were, did they purposefully go against them?
Have other unit owners utilized the same product and installation procedures with or without the same results?

In the above situation, we’re not able to determine if the unit owner was being negligent as:

It’s not clear if the owner purposefully damaged the pipe so it would leak,
Whether other units in the building installed a similar machine with the same result,
Who was responsible for the pipe, and
A number of other missing pieces, including whether the building’s bylaws laid out specifics surrounding materials and installation processes.

Creating clarity surrounding “negligence”

To avoid confusion on who’s responsible for fees, if negligence actually happened, and what type of products your unit owners can install, let’s look at how you can bring more clarity to your bylaws to avoid the above type of confusion.

- Type of product. While you can’t necessarily tell your unit owners what appliances they can and cannot have in their homes, you can provide specific guidelines to follow that will help ensure the quality of the product is there. For instance, you can:
  - Indicate that appliances that connect into the building’s community lines (e.g. washing machines, dishwashers, shower systems, etc.) must be installed by a board approved installer. If installed by a professional and there is still a leak or rupture, then the unit owner isn’t responsible as they followed the protocol laid out by your condos bylaws.
  - Develop guidelines surrounding the quality of products allowed in your building (e.g. steel braided hoses over reinforced rubber hoses). This will help ensure that your residents don’t use improper or inferior products when it may affect the rest of your condo building.

Remember, we are all human and it’s natural to assume that the products that come with an appliance are fine to use. If a common product was used, and others in your building have the same quality of product, then it’s hard to prove that the unit owner acted in a negligent manner. However, if they used a different product that wasn’t designed to connect a washing machine to its water supply, then this points towards, but doesn’t necessarily confirm, negligence.

Location of leak. Another item that must be clear in your bylaws is what aspects of a unit owner’s plumbing is their responsibility versus the condo building’s. Make sure it’s clear as to what are the domestic lines versus the communal lines and how each affects the unit owner. Currently, the Condominium Property Act does not speak to these responsibilities, leaving this to the discretion of the individual condo building’s bylaws. If your bylaws are unclear, then they may favour the unit owner.

Insurance. Your unit owners pay into the insurance coverage for your overall building, therefore, depending on the finding of responsibility, the unit where the leak originated may be covered under the master insurance coverage for your building. However, it is still the responsibility of all unit owners to have insurance coverage over and above this master coverage, for their individual unit. If an insurance claim is made to cover the cost of damage repair, then the condo corporation must ensure that the proper party is covering the cost of the insurance claim. To do this, they must prove negligence – and this is often where the circle of confusion comes back into play. If you lay out what your master coverage covers in a clear and concise manner, then unit owners will have a better understanding as to what they’re responsible for should they be found “at fault” for repairs.

For your condo building to avoid these types of confusing situations, you are encouraged to review your current bylaws. If confusing, begin building more clarity around them breaking down all areas where it’s unclear as to the responsibilities of the owner versus the responsibilities of the corporation. This will remove future confusion surrounding who is responsible for specific repair costs.

If you’re curious to learn more, have a specific question about negligence, or are simply looking to connect with other condo owners and condo board members for insights, visit Alberta Condo Owners for Change.

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