Halifax, 5572 Northridge Rd.: Professor Catherine Browning buys a leaky rotten condo, sues condominium corporation after discovering significant water damage and suffering sixteen months of living in a construction zone

 

Claim No: 281309

 

                  IN THE SMALL CLAIMS COURT OF NOVA SCOTIA                        Cite as: Browning v. Halifax Condominium Corporation #6, 2007 NSSM 51

 

BETWEEN:

 

                                            CATHERINE BROWNING

                                                                                                                     Claimant

 

                                                         - and -

 

 

                             HALIFAX CONDOMINIUM CORPORATION #6

                                                                                                              Defendant

 

 

 

 

 

 

 

 

                                       REASONS FOR DECISION

 

 

BEFORE

 

Eric K. Slone, Adjudicator

 

Hearing held at Halifax, Nova Scotia on July 24 and 30, 2007

 

Decision rendered on September 10, 2007

 

 

APPEARANCES

 

For the Claimant - Kent Noseworthy, counsel

 

For the Defendant - Dennise Mack, counsel

 

 

 


 

 

BY THE COURT:

 

 

Introduction

 

 

[1]               The Defendant, Halifax Condominium Corporation #6, is the statutory entity which was created to operate and manage a high-rise apartment and townhouse complex at 5572 Northridge Rd. in North Halifax (hereafter referred to as “the building”).  As the one-digit number indicates, it is one of the older condominium projects in Halifax, dating back several decades to when legislation was passed to allow for this form of property ownership.

 

[2]               The Claimant, Catherine Browning, purchased unit 204 in the building in April 2006.  As will be further described, she almost immediately began what she intended to be minor renovations and discovered significant water damage that had been likely going on for years, but which was largely obscured by carpeting, flooring and other structures.  For the past sixteen months her apartment has been a virtual construction zone.  She has not had the enjoyment of the unit that she had hoped for.  And she has had to bear significant financial and personal expense to rectify the damage.

 


[3]               In this lawsuit, the Claimant seeks to hold the Defendant condominium corporation responsible for the damage to the interior of her unit principally upon the theory that the Defendant, as the owner of the common elements, had a legal duty to address the water incursion problem and failed to do so reasonably.  There are also arguments made to the effect that the legal documentation underlying the condominium, properly interpreted, places that responsibility on the condominium corporation quite apart from any possible negligence.

 

 

[4]               The Defendant denies that it is responsible on the theory that it was simply not negligent in the performance of its duties, and that the legal framework of the condominium squarely places the risk of damage to the interior of a unit on the unit owner.

 

The Facts

 

[5]               The Claimant is a university professor who described herself as a lifelong renter who had never before owned real estate.  When finally ready to take the plunge into home ownership she was attracted to the unit advertised for sale at Convoy Towers East, the subject building at 5572 Northridge Road.  She viewed the unit with her real estate agent and was interested.  The unit was originally a one-bedroom that had been converted to a 2-bedroom unit by partitioning off the sunroom.  The apartment “showed beautifully,” as she put it, and though fairly small at 650 square feet, met her needs and expectations.  She put in an offer conditional upon a satisfactory inspection.  She hired a qualified residential property inspection company and attended with the inspector on the day of the inspection.

 

[6]               As was required by law, the vendor had completed a property disclosure statement.  The statement disclosed that there had been some water damage to the floor as a result of Hurricane Juan in September 2003, but did not give much cause for alarm.

 


[7]               The inspection was non-invasive, as is expected, since a prospective purchaser is in no position to remove structures or do damage in order to unearth possible problems.  Nevertheless, it did reveal some issues which, in retrospect, might have been seen as red flags.  These included the following:

A.                 The sliding windows were noted to be sticky and hard to open.

B.                 There was interior staining noted at or near window sills, which was suggested might be due to windows being left open during rain.

C.                 There was a stain noted on the carpet below the window.

 

[8]               The Claimant was not deterred by this inspection which was, in the aggregate, quite satisfactory.

 

The discovery of water

 

[9]               The Claimant testified that although the inspection had noted a bit of water staining on the carpet below the living room window, she was not prepared for what she discovered when she decided to remove that carpet shortly after taking possession.  What she found was serious mold and mildew blackening the parquet floor underneath.  Concerned about the health implications of mold and mildew, she consulted with a mold removal company which confirmed what it was and gave a quote to remove the flooring and clean up the mold.  Rather than pay the $775 quoted, the Claimant and her partner decided to do the work themselves with scrapers and mallets.  This took “days and days” of work, and the debris had to be hauled away by a junk remover.

 


[10]           Further consultation with experts revealed that water coming through the exterior wall near the window was the source of the problem.  This led to a contractor being hired to remove part of the wall around the window to identify the source of the water.  The initial strategy employed was to attempt to apply a waterproofing compound to the wall, followed by drywall to restore the wall to something resembling its original condition.  Unfortunately that did not do the trick as water continued to come in when it rained, and the drywall had to be removed to expose the wall for further investigation and remediation.

 

[11]           The Claimant had upon the discovery of the problem immediately reported her difficulties to the condominium corporation which dispatched the property manager and one of its regular contractors to assess and monitor the situation.  It so happened that the corporation was already engaged in scheduled repairs to the wall of units (the “riser”) which included the Claimant’s unit.  That work, installing flashing, did not entirely solve the problem, and it was not until further work was done by the corporation in March 2007 that the water incursion appears to have been stopped to an acceptable degree.  That work involved removal of brick, addition of a vapor barrier and replacement of insulation.

 


[12]           In the meantime the Claimant had to deal with a rotting wood window frame, an incursion of ants, and a deja vu experience of discovering similar problems in the bedroom of the unit.  Essentially, no sooner was one part of the unit on the way back to being normal when another part became a construction zone.  The exterior problems in the bedroom area appear to be on their way to resolution, hopefully, leaving the Claimant to contend - even if not with further water problems -  with the expense and disruption of restoring that part of her unit.

 

[13]           At trial the Claimant produced a vivid photographic record of the wet and damaged structures that were discovered, and of much of the work done to address the issue.

 

[14]           It should be mentioned here that the previous owner, a gentleman who the Claimant never met and who was not called to the trial to testify, had lived in the unit for about twenty years.  The documentary evidence from the corporation minutes of meetings and the testimony of its witnesses made absolutely clear that this individual had never reported any water incursion to the Board or the property manager in all of his years of ownership.  So there is no possible way that the Defendant could have known, until made aware by the Claimant, that there was an issue with water incursion specifically into this unit.

 

[15]           There was a great deal of testimony about how water incursion had been a significant problem in this building for a number of years.  Typically, the water would leak in around the windows, especially when wind-driven.  Some units fared better than others, depending on their orientation.  Those units facing into the prevailing winds reported more problems than others.

 


[16]           Building codes and practices have changed since this building was constructed thirty five or more years ago.  Back then, there was no requirement for flashing above windows or vapor barriers of the type now in use, and consequently none was incorporated into the design.  Had there been such flashing and/or vapor barrier, much of the water that gets behind the brick facade would likely have been directed away from the windows and fallen to the ground.  Without flashing and vapor barriers, there was a greater risk of water getting in through the window framing.

 

[17]           The building’s property manager testified, and I accept, that water incursion is a problem common to most high-rise buildings in Halifax, and there is no surefire way to avoid all water incursion all the time.  I accept his testimony that no company doing this type of remedial work will even guarantee that water incursion will be stopped as a result of measures taken.

 

The damage claim

 

[18]           Essentially the claim for damages includes costs that the Claimant has spent on having work done to the interior of the unit, or compensation for the many hours of work that she has done herself.  The Claimant has made a decision to do much of the work herself because she did not have the money to pay others to do it.  She admitted that she is an amateur and that it takes her much longer than it would a qualified tradesman to achieve the same result.  However, for all of the work she did herself she had estimates of how much it would cost to have the work done professionally, and is claiming that same amount. 

 


[19]           Counsel for the Defendant argued that the Claimant was attempting to be compensated at the same rate as a professional, but I believe she missed the essential point that the Claimant was using those quotations as a yardstick to value the work achieved, even though it might take her five times as many hours to achieve the same result.  I have no difficulty in accepting provisionally that the amount claimed altogether, which by the time of the trial had been whittled down to an amount less than $12,000.00, is a reasonable estimate of the damage to her unit caused by water incursion.  The real question for me to answer is whether she has a reasonable basis to recover this amount from the Defendant.

 

 

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