Post Flooding Legal Blues

flood
This past weekend for many in Regina and South East Saskatchewan was difficult.  The rain that fell on these communities caused flooding and significant property damage.  The response of the various communities has been inspiring, and the efforts of volunteers show some of the intangible benefits of living in our fine province. 
 
When the dust settles however, these type of water events tend to bring problems in residential properties to the surface.  Frequently, cracks in foundations or leaks in roofs are discovered in the midst of these events, and costly repairs are required.  These unanticipated costs frustrate home owners and they look for repayment from previous owners to defray the significant expense. 
 
This post is highlights some key points from the case law. This type of claim requires a nuanced review of the available evidence. These cases are incredibly fact specific – please contact your lawyer to assess the merits of whether or not you have a good claim or not. A lawyer can also assist you in determining what information you should be seeking out to prepare for litigation, if it is necessary.
 
The cases in Saskatchewan have fairly consistent law on the analysis required to determine if the defendant, frequently the last home owner, should be responsible for the damage caused through the leaky foundation. I will post some of the decisions below to give people an idea of what the analysis is, and what the judge in each of those specific cases found to be probative in determining liability.
 
The first key message is that it is likely not enough to have a vendor to have signed a property condition disclosure statement (PCDS), and to have indicated “No” on the section where it discusses the foundation. You will want to identify evidence that the vendor was aware of the defect at the time that PCDS or the contract was complete. 
 
A second key message is that even if the previous owner is found to be liable, it does not necessarily mean a blank cheque for all repairs.  The court will look at the damages requested and assess whether they were appropriate in the circumstances.  Improvements beyond the condition of the property prior to the damage, lack of connection to the damage, and lack of proper evidence establishing the damages could all negatively impact the award provided.
 
A sampling of case law:
 
Jacobucci v Prediger, 2012 SKQB 319, http://canlii.ca/t/fshp0
Hipperson v Williamson, 2012 SKQB 119 (CanLII), <http://canlii.ca/t/fqs96>
Britt v. Klimczak, 2010 SKQB 407 (CanLII), <http://canlii.ca/t/2d6vm>
Hanson v. Dumont, 2005 SKQB 158 (CanLII), <http://canlii.ca/t/1k5n1>
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