… Negligence (maybe?)
unit furnace was in jeopardy. Even still, the Breakwell Court determined that the unit owner’s act or omission did not have to be negligent – and the damage did not have to be foreseeable – in order to make them liable for the cost of repair. … Indeed, in this case, the Lozanos appear to be advocating for a system based on proving negligent act or omission; absent which, no unit owner could be held financially responsible for the cost of repairs. However, the case law definitively indicates that the negligence standard is not to be applied in condominium disputes of this kind; rather, the standard is between negligence and strict liability and is perhaps closer to the latter. …
This is not a case where the unit owners were negligent in their care and upkeep of the Unit. Rather, this is a case where the failure to retain a plumber who could make thorough repairs constitutes an omission for which the Lozanos must be
held responsible. Further, while the Lozanos were conscientious in
arranging family and friends to check on the Unit during their prolonged absence, it would have been additionally prudent to have shut off the water to the Unit during their trip. Doing so would presumably have mitigated against any damage of the kind suffered here and is reflective of the level of care and diligence that is expected of condominium owners. These are strong words by the Court and creates an important lesson for unit owners – when you discover an issue, make sure to investigate it properly and to document the steps you have taken. You may be thinking to yourself “it sounds like the Lozanos acted reasonably” but the Court is saying that by failing to hire a plumber to check the toilet, and to shut off the valve, there was an “omission” which caused the leak. Owners are expected to be prudent and the Court is implicitly saying that condominium owners are expected to have a high level of care and diligence. So next time you discover an issue with something in your unit, consider calling in experts in to make sure there are no bigger issues which you might not have picked up on. And if you go on a long trip, shut off the water valves in your unit!
- LH
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