Repair and Maintenance Extends to Discoloured Water

The case of Shields v Strata Plan VIS 5030, 2017 BCSC 1522, deals with the strata corporation's repair and maintenance obligations when it comes to discoloured water coming from the common property taps.

To understand this case, an overview of the facts will be necessary.

The strata was a high end development wherein the units were large (some 2300 square feet with a 900 square foot deck) with values at $2 million (in Victoria, not Vancouver, where this type of value is common for less than high-end places).

Since the strata was constructed, in 2004 owners had been complaining to the strata council of discoloured water coming from the taps. The Shields purchased their unit in 2006 as a vacation type home, for occasional use. They noticed as early as 2007 about discoloured water coming from their taps. They formally complained about the discoloured water to the council in 2009. In response, council had the lines flushed. Which did not solve the problem.

For the period 2009 to 2012, there were multiple complaints to council about the discoloured water and there were further investigations taken by council to resolve the issue. A report recommending repairs was provided in 2012, which was partially followed.

However, this did not solve the issue and it continued from 2013 to 2015. Further recommended repairs were suggested in September of 2015. Which was completed in August 2016. Again, it did not solve the problem for the Shields. In response, the strata started flushing of the lines on a monthly basis. Which new resolution did not have enough time to prove that it would work before the matter went to a hearing before the Court.

At the Court hearing, the water quality issue was still not resolved for the Shields. Therefore, they had been experiencing discoloured water, with sediment and heavy metals, for at least 10 years.

Did the strata corporation fail in its repair and maintenance obligations? Short answer - Yes.

The strata corporation was responsible to repair and maintain the common property plumbing system (section 72 of the Strata Property Act), and that duty extended to fixing plumbing that caused water discolouration  and heavy metal to appear in the water (Taychuk v The Owners, Strata Plan LMS 744, 2002 BCSC 1638).

The Court noted:

No strata anywhere in Canada would reasonably be expected to accept water of such deificient quality without complaint. Shoal Point is described . . . as a 'deluxe' development. Certainly, no unit owner in a development of this quality should have to tolerate such a state of affairs.
. . .
The reasonableness of the [strata's] repair efforts since the issues came to its attention has to measured in light of the reasonable expectations of its unit owners. 

The Court found that the attempts of the strata from 2009 to 2015 were inadequate and were unreasonable and the strata corporation was found to have breached its repair and maintenance obligations.

As a result of the strata's breach of its obligations, the Shields were awarded damages of $15,000 total for the loss of enjoyment of their unit and the inconvenience caused by the delay in resolving the problem, and the Shields were awarded their Court costs. Because the new flushing of the lines on a monthly basis did not have enough time to prove to work or fail, the Court made no orders against the strata for further repair work.

In the end, the repair became much more expensive for the strata corporation for having to defend a lawsuit and pay the Shields damages and Court costs which may have been avoided by taking more extensive steps earlier in the repair process to resolve the issue.

---

TAEYA FITZPATRICK Taeya Fitzpatrick has specialized in strata law for most of her practice, has won cases for her clients in the BC Supreme Court, the BC Court of Appeal, and assisted with a client succeeding in defending a Civil Resolution Tribunal claim. Taeya offers full services to a strata corporation or a strata owner from redrafting the strata’s bylaws, collection of outstanding strata fees or other charges, issues with bylaw enforcement, to amending the strata plan. For more information on the services provided, you can reach Taeya by email, phone: 250-763-4323, or at her Web Page.