We had asked for the minutes of the board meeting where out…

Hello,

My apologies. Your reply was not visible on my list of replies until just the other day when the administrators notified me you were still awaiting a reply.

We really cannot comment on the "reasonableness" of the 50/50 split. Ultimately whether the Association is or is not responsible for the damage to the finished basement will depend on what - if anything - is present in the bylaws about that. Generally speaking anything inward of the studs (or in the case of a basement the poured or block concrete foundation) is deemed to be part of the unit and the responsibility of the homeowner (or, as is usually the case, the homeowner's insurance) to cover. Outward of that point it is often common-area and the Association's responsibility. Now this can vary greatly based on how the original Declaration is drafted and whether that Declaration was amended by Bylaws and Amendments to the Declaration - so you'll have to look into that specifically as - frankly - anything is possible when it comes to documents of this nature.

Presuming that the Declaration and Bylaws conform with the norm here, and you would normally be responsible for the damage inside of the foundation walls, then the issue of fault and reasonablyness comes to play. It would appear the Association will have a very difficult time arguing causality (meaning what caused the damage to the non-common-area property elements) but a court would look to whether their response was "reasonable" in the circumstances.

Under normal circumstances I would argue (and I'm sure you would as well) that over a week for the Association (through their sub-contractor) to act when the damage is ongoing wouldn't be reasonable. However, if they can show that some sort of emergency occured that made it impossible for them to act any sooner then perhaps a judge could be persuaded that they acted as soon as possible (though, frankly, I doubt it).

One issue that you will face and have to contend with if you end up taking this to court (Small Claims in this case) is whether you acted reasonably to mitigate the damage. A judge may well be persuaded (and I'm sure the Association will argue) that - while they may have been liable for not acting soon enough - that you would have an obligation to mitigate the loss which could well have meant that you would have been responsible for anything from moving out any items that could have been damaged by the water penetration to bringing in another company to address the issue until the Association could get to it. (I will draw your attention to the fact that your counter argument to this is that - in all likelihood (and you'll have to verify this) the Bylaws prevent you from doing anything to the common-area even in an effort to mitigate loss -- at which point the argument will spiral into a slew of hypotheticals about what damage could have been avoided and whether the Association should have been the one to make other arrnagements where their people couldn't address the issue soon enough. Hypotheticals that I'm not quite sure a judge would either entertain or have much patience for).

In all likelihood you'll end up at something akin to a 50/50 split at trial anyhow however, you could very well end up with the Association having to foot the full bill for the repairs if a judge is convinced they acted unreasonably or, conversely you would be responsible for the interior damage (non-common-area) if the judge is convinced the Association acted reasonably given the circumstances. Its most definitely a gamble.

At the end of the day, however, if I were in your position, I would probably take this through the Small Claims process as my feeling is that you've got more to gain than lose at this point.


Finally, one quick note on the issue of minutes. This comes up fairly often (and depending on the jurisdiction involved can be either the norm or a red-flag that a Board may not really be aware of the full extent of their obligations to home-owners). Generally speaking unless something in the Declaration or Bylaws prevents it or otherwise circumvents it, a condominium owner has an affirmative right to know the deliberations of the Condo Board as the owner has a vested proprietary interest and their property rights are affected by that Board's deliberations. Likewise the Board, technically speaking, works for the owners as a whole and is not free to do with the Association's assets and funds as they please while they remain in power and is accountable to homewoners to demonstrate where the fees paid to the Association are spent. In your case if a decision was made at a properly held Board Meeting (be it a special meeting or a regularly scheduled meeting) unless the Bylaws permit the Board the power to call private meetings for such matters, not only should you be entitled to receive copies of the minutes BUT you should have been given notice that the meeting was appearing and given an opportunity to be present.


So, what to do now? First, do some research - get copies of the Declaration, Bylaws and any Amendments to the Declaration and figure out what the Board's obligations were with respect to the Meetings AND what the full definition of Common-Area and Non-Common-Area property is. This will frame your argument. Next, give the Board an opportunity to react (a well drafted demand letter may be valuable here and may not be a waste of your money to retain a lawyer to help you with). Finally, if that yields no results (and having tried is valuable in and of itself when it comes to this) I'd recommend taking this through the Small Claims process and let the court make the final determination.

For info on Small Claims in Ontario, see: LINK.

Regards XXXXX XXXXX wishes.