Leaky Condo Syndrome - Statute of Limitations #313

By Gerry Neely
B.A., LL.B.

That leaky condos are disasters is a given but what is even more depressing are the results of the decision of the cases now being heard concerning the attempts by condominium owners to obtain damages from developers, architects, engineers and others involved in the planning and construction of the condominium.

Strata owners, and in particular, strata councils, need to be aware that once there is evidence of a leaky condo syndrome, the writ must be issued within the time limitations contained in the Statute of Limitations. Failing that, the right to recover damages is lost.

That was the position of the owners of a strata complex completed in 1986. Within a year there was evidence of leakage through the roof. Some remedial work was done by the contractor, but the leakage continued. Consultants’ reports indicated damage to the balcony decks and stucco. Correspondence took place in 1988 and 1989 with the developer, the roofer, and the new home warranty program. Legal actions were threatened in 1990, but it was not until November 7, 1995, that the writ was issued against the architects and others involved in the construction of the complex.

The normal limitation period for an action for recovery of damage to property under the Statute of Limitations, is six years. That meant that the writ should have been issued sometime in 1992, six years after completion of the complex. Understandably, since defects may not become known for some years, the Statute of Limitations provides an exception to the normal six-year limitation.

There are two parts to this exception. The first is that time doesn’t begin to run until the identity of the wrongdoer is known to the person issuing the writ. The second part is that if the strata council had taken legal advice at the appropriate time, would it have been advised that there was a reasonable prospect of success in an action brought to recover the cost of repairs to the defective building?

The second part did not require that the strata council actually take advice but whether, at the appropriate time, they either knew or had the capacity to discover the facts upon which a cause of action would be based. In effect this part involves "notional advice given by notional advisors". he appropriate time in this case was no later than six years prior to the date of issue of the writ in 1995.

This would have been prior to November 7^th, 1989. There was ample evidence at that date of the seriousness of the problem and the identity of the parties to be sued. The strata council failure to act promptly was a complete bar to the claim for damages against the contractors and consultants.

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