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| Harjot Atwal |
On the rarest of occasions during my eight-year career in real estate law, I have reviewed a status certificate and discovered that the condominium building and/or unit had an issue with Kitec plumbing. Kitec plumbing is extremely problematic in condominium buildings, particularly of the high-rise variety, due to its tendency to prematurely fail and corrode. It was the subject of a US$125 million settlement in 2012 pursuant to a class action lawsuit after the manufacturer recalled much of the product in 2005.
This is the second in a series of articles about various ways in which my knowledge of residential real estate has been enriched by my pursuit of a realtor licence with the Real Estate Council of Ontario (RECO). The series addresses shared wells and rural real estate, condominiums and Kitec plumbing, asbestos and urea formaldehyde foam insulation (UFFI), disclosure of septic systems, and lot sizes and damages. A further series will be written when I complete the commercial real estate part of the RECO course currently offered by Humber College.
As the RECO course materials explain in greater detail, which I will condense a bit here, Kitec plumbing became popular because it was thought to be a cheaper alternative to copper piping and easier to install. It consists of a flexible aluminium pipe between an inner and outer layer of plastic pipe, but the pipes are prone to leaking or even bursting when exposed to water that is run at too high of a temperature or pressure. The brass fittings are also an issue in that they have high zinc content, which can cause corrosion. A reaction then occurs whereby water pressure is restricted, the brass fittings fail, and flooding and water damage ensues.
As a lawyer, it is my job to spell out at least a few things for someone purchasing a unit with known Kitec plumbing issues, namely:
- If you are seeking insurance for the inside of your condominium unit, commonly referred to as contents insurance, you will likely be subject to a higher insurance premium;
- Moreover, though the physical structure usually has separate insurance in place purchased by the condominium corporation, that insurance will also be subject to a higher premium which will then be reflected in increases to your monthly common expenses (also known more colloquially as maintenance fees) or a special assessment; and,
- Based on the wording of the mortgage instructions, as well as what is specified in the status certificate as the consequence(s) of the Kitec plumbing, it is possible that your lawyer may feel compelled to disclose the Kitec plumbing issue to the lender providing financing for your purchase transaction, and they may not be enthused with the presence of this kind of problematic plumbing too.
But, you say, it’s my plumbing! To paraphrase the above-noted quote, what business is it of yours?
Well, enter the case of York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914. The corporation investigated water leakage issues that occurred between March 2017 and August 2018, only to discover that the building units were constructed with Kitec plumbing, fittings and manifolds. A building-wide Kitec removal program then began, whereby unit owners either had to remove the plumbing on their own, or the corporation would remove it for them and charge them for it.
In this case, the unit owners — Mr. and Mrs. Lee — appear to have been adamant about not wanting to comply with the removal program. Indeed, a telling indication of this is that Mr. Lee insisted the delays in removing the Kitec plumbing from the subject unit were due to a medical condition his doctor had not yet cleared him of, but no medical evidence was ever provided. Also noteworthy was Mr. Lee’s refusal to permit entry to the Corporation’s engineers, his insistence that the inspection was being taken care of through the City of Richmond Hill, but a follow-up phone call indicated there were much more issues with the subject unit receiving a building permit than he was letting on.
Of all the units in the condominium complex, it was the last unit to be certified as Kitec-free. In the end, before the removal was done for this unit, the court determined that the unit owners had breached their obligation to maintain and repair their unit, as well as allowing reasonable access to the Corporation to enter and inspect their unit to confirm the removal of the Kitec. These obligations are respectively detailed in s. 89-90 and s. 19 of the Condominium Act, as well as in the condominium’s specifically enacted declaration (i.e. its most important constating document).
Perhaps most relevant here is actually s. 117 of the Act, which states that: “No person shall, through an act or omission, cause a condition to exist or an activity to take place in a unit, the common elements or the assets, if any, of the corporation if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause an injury or an illness to an individual.”
On a practical level, by permitting this dangerous condition to persist in their unit, they have also impacted other unit owners in the sense that insurance premiums remained higher than they should have been had the Kitec plumbing been removed in a timely fashion. The repairs were not actually completed until June 2021.
To put this into a financial perspective for Mr. and Mrs. Lee, they at least paid $4,541.95 for the lower court decision of YRSCC No. 972 v. Lee, 2021 ONSC 3877, and $4,500 for the aforementioned appellate court decision. On top of this, there appears to have been a final costs award, charges with respect to work done to remove the Kitec plumbing, and further fees related to inspections and possible restoration, maintenance and repair to the common elements and other areas.
Moreover, as per my previous article here, had a flood actually occurred because a pipe burst, it could have led to something like $10,000 in hardwood floor repairs, as occurred in Suttie v. Metropolitan Toronto Condominium Corp No 683 [2011] O.J. No. 6368.
To end, I will again refer to and add on to one of my previous articles when I state: it is not only important to establish “interpersonal and societal boundaries between condominium neighbours living together and interacting in a community,” but it is also important to respect condominium rules regarding potentially dangerous conditions, especially if they could lead to increased costs and insurance premiums for others.
This is the second part of a five-part series. Part one: Lessons from RECO: Shared wells and rural real estate.
Harjot Atwal is a real estate lawyer. In 2023, he opened up his own shop, Atwal Law Firm. For legal matters, you can reach him via email at harjot@atwallawfirm.ca. He is also a mortgage agent (level 1) with Pineapple Financial Inc. (FSRA #12830) and currently pursuing his realtor licence with RECO. His phone number is 647-967-6548, and you can also reach him on LinkedIn.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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