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Tom B.
Tom B., Barrister & Solicitor
Category: Canada Law
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Experience:  23 years in practice
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I own a condominium in Edmonton Alberta. My condo is less

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I own a condominium in Edmonton Alberta. My condo is less than 5 years old and I am the second owner. My problem is this: the bathtub in my unit has an inherent defect (a hole in it) this hole was not caused by me, it is obvious that the bathtub is defective. When the bathtub is full of water it leaks and subsequent to this leak the floor in my apparent flooded. The only way that it was determined that a leak was apparent was when I noticed the laminated flooring was squishy and had water extruding from the slats of the floor. The property management sent over a handyman to inspect and he had to cut a large section of the drywall to determine where the leak was and it was at that time that it was noted that the bathtub was leaking. The property management is not willing to use the condo association insurance to fix this flood and replace the bathtub as they say that the bathtub is not common property. My individual insurance will not cover the repairs as they say it is a structural defect and the condo association should be covering this problem. According to the Alberta Condominium Act and Regs., do I have a legal position to get the condo association to cover this problem? Thank you for your consideration and answer.
Please note the bylaws of the condominium do not speak directly to this issue.
Submitted: 2 years ago.
Category: Canada Law
Expert:  Fran-mod replied 2 years ago.
Hi, I’m a moderator for this topic and I wonder whether you’re still waiting for an answer. If you are, please let me know and I will do my best to find a Expert to assist you right away. If not, feel free to let me know and I will cancel this question for you. Thank you!
Customer: replied 2 years ago.
Hello, Yes I am still waiting for a response. Please find an expert to help answer my concerns noted in the question.

Thank you
Expert:  Fran-mod replied 2 years ago.
Sometimes, finding the right Expert can take a little longer than expected and we thank you greatly for your understanding. We’ll be in touch again shortly.
Customer: replied 2 years ago.
Hi, I am still waiting for an answer. thank you.
Expert:  Fran-mod replied 2 years ago.
Thank you for your patience, your business is very important to us, we are waiting on the Expert with the right expertise to come online. Feel free to let us know if you would like us to continue searching for a professional or if you would like us to close your question. Thank you for your understanding!
Customer: replied 2 years ago.
NO, I do not want this closed! I asked these questions to get answers not to have them closed without an answer!
Do you have any legal experts from Canada? If so, I need an expert with a knowledge of British Common Law, Real Estate Law, Canadian Constitution.
Thank you and I will wait for an answer.
Expert:  Tom B. replied 2 years ago.
Hey there.

I am sorry you have waited. Yes, we have Canadian lawyers on hand. That does not mean that off of the top of our heads that we know every answer. Sometimes, a question takes research and contemplation. Also, we want to try and help to find an answer that may be a happy one for the person asking. That is not always possible.

Keep in mind always that you pay nothing unless you accept an answer happy or not.

I believe myself well versed in the laws that you have quoted. But, none apply in my opinion. What does apply is condominium law and contract law.

Governments across Canada set up Condos to allow people to buy property in a "democracy". There is no end to problems under that ideal. But it all comes down to what did you agree to in writing which is contract law.

Under the Alberta Home Warranty Program, condos are included. But, after a year, the warranty program is reduced to structural problems up to five years. Fixtures such as bath fixtures, are included for one year. There could be a manufacturer's warranty on the tub that exceeds that.

Have you looked at the manufacturer of the tub to see if there is any warranty?

Customer: replied 2 years ago.
Thank you for getting back to me and explaining your processes. I understand that the tub in the condo may have a 5 year warranty; however, trying to find documents is next to impossible. The first owner did not leave any documentation regarding the bathtub and I expect the developer did not leave documentation for the maker of the tub to any of the unit owners.

Therefore, I am still at a standstill with finding out who really is responsible for the leak which was not caused at all by my negligence.
My gut instinct is the property management (Condo Assoc.) should be have ownership to this defect as the developer installed the defective item.

My property insurance is quite clear in that they only cover upgrades and my laminate flooring is not an upgrade. The only possibility for having my personal condo insurance cover this defect could be the bathtub which maybe considered an upgrade since it is a full wall unit and not the standard bathtub.

I feel that the Condo Association's Insurance should be able to cover this defect and subsequent damage to my suite as it is a structural problem from a piece of equipment installed by the developer. However, I am having trouble interpreting the Alberta Condominium Act and it's subordinate Regulation in order to determine whether I have the clout to use this legislation in case I need to go to court.

Further, I was wondering if there were any common law cases which speak to these issues that I have encountered, hence my query to the moderator in asking if there are any Canadian Experts with Common Law experience.

So, my botXXXXX XXXXXne is: Should the condo insurance cover this defective bathtub and damage to my suite? And if so, what legislative power do I have to 'show' the condo board that they have a duty to help me get this problem fixed.

Thank you kindly for your consideration and learned experience in helping me get an answer to my questions.
Expert:  Tom B. replied 2 years ago.
If the tub is probably under warranty I would not give up because paper work is not available. The unit will have a stamp on it as to who the manufacturer is and then someone will know who the developer is and who installed it. There are other methods of proving how old the tub is other than with documents. Indeed, I am surprised that the association and/or the developer is not assisting you in this manner.

Yes, there are many cases that discuss who is responsible for what in condo cases. Indeed, years ago when I was practicing closer to this area, I worked on a few including a case that asked who is responsible for condensation inside dual pane windows. The issue is whether something is a common element or not. Often in law we have to look for analogies to find the answer. Your dishwasher as an example. If it leaked, warranties aside, you probably would have no claim against the corporation any more than you would if it was a broken fire place or light fixture.

Having said that, there could be something hiding in your bylaws or in either insurance policy that could bring you the answer. That is why I stated that this is primarily contract law. What is covered and is not is written and that is more certain than the opinion of any agent. Of course, I cannot read any of those materials.

So, a close look at the bylaws and the policies is where this investigation has to start. I am concerned however that the Alberta CONDOMINIUM PROPERTY ACT states "a corporation is not required to place and maintain insurance against perils to which the common property is not subject." That does not mean that they are not covered however. They just state that they are not.

Searching for cases on any legal issue is a bit of an art but you can give it a try at the following link. I spent about 30 minutes but found no joy for you but such research takes a lot of time. The site is not user friendly but it is free and very useful when you get the hang of it. I searched for cases in all provinces and not just Alberta. You want to find a foot in the door and then work backwards. On the first search line you would enter condominium and then "and" followed by different search parameters using the analogy approach. They are in quotation marks like "leaking bathtub". You will get cases using that but none that are definitive.

http://www.canlii.org/en/


Nothing I saw in my research indicated to me that a bathtub is anything other than the property of the owner.

There are other resources to find law that could support a claim. The law courts and law schools in Calgary and Edmonton have libraries with helpful librarians. These libraries are open to the public and have sections on Condo law. Look for text books and not cases first. You should find texts specific to Alberta but any text will do to start. In each you will find the debate on what is inside or outside a Unit and you will see that what is inside is generally the responsibility of the owner.

Your next resource is a live lawyer who can look at documents. Below is a link to the lawyer referral program. Call them and ask for lawyers who practice condo law. You will be given a few names of lawyers who have agreed to meet with clients initially at no charge for up to 30 minutes. I worked more than that looking so you may find a fee is requested especially if you want them to read the small print.

http://www.lawsociety.ab.ca/membership/referral.aspx

However, expect the first reaction to be that the tub is your responsibility. On the other hand, a person who practices in this area every day might have an angle for you off the top of his/her head.

This is just a blog and not law nor a legal opinion even but I found this directly on point while trying to assist.

http://canadianmoneyforum.com/showthread.php/3242-Who-is-responsible-for-cost-of-fixing-leaking-tub-in-a-condo

So, it is not possible to see if any insurance policy applies without reading the policies. If a warranty still applies, it should be investigated even if there is no paperwork. Your have other information resources but your challenge is the position that the tub is not common property.

I certainly gave it a go despite my instant reaction on the facts that this was about bylaws and contracts.

Please consider accepting my answer for my time. I am interested and would schedule a follow up in a month or so. If you need any clarification of my points, please reply.

My best to you,

Tom




Customer: replied 2 years ago.
I graciously accept your answer: thank you for all the work that you did for me.

From here forward, I will seek the opinion of a lawyer and continue research in the areas that you suggested.

FYI, I pursued the angle of the condo association's insurance because my personal insurance agent/adjuster seemed to think that it was the responsibility of the condo association's insurance since it was a structural defect installed by the developer.
As is usual, it appears that everything within the 'four walls' is up to the condo owner; however, reason would tell me that there must be exceptions to this notion which was alluded to by my insurance agent.

I will certainly give up my quest if I can get a good solid No and have no problem fixing it if it is indeed my problem. However, I do work with a very combative Condo Association and I prefer to have the facts before I approach them in writing.

Again, thanks for your input and I have no problem at all accepting your answer.
Expert:  Tom B. replied 2 years ago.
Run for the Board next election.

You have to click the accept button.

Lets talk in a month.

Tom
Tom B., Barrister & Solicitor
Category: Canada Law
Satisfied Customers: 2129
Experience: 23 years in practice
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