Is my builder liable if my new cottage is built in a floodplain and it floods?—Sierra Marley, via email
We’re assuming you’re in Ontario, and that you’re asking this question because of the recent changes brought about by Bill 23 and the two proposed amendments to the Conservation Authorities Act. Unfortunately, it’s a tough question to answer. And not only because Bill 23 is a new piece of legislation.
“These sorts of things are very fact specific and a number of variables can drastically affect the legal issues,” says Oliver Cooper, a lawyer with MKC Law Office in Peterborough, Ont. Still, yes, it’s possible that the builder could be liable—it would likely depend on the contract that you signed with them at the time of the build.
Actually, “there are a number of parties who could potentially be liable, including any contractors, municipalities issuing permits, builders, and inspectors,” says Cooper. Who is legally at fault for damage to the flooded cottage would be affected by “any contracts entered into which may limit liability and the duty of care and standard of care each party has to the owner,” he says. “I have seen claims where all of the above have been named in lawsuits, along with prior owners.”
Your question brings up other questions: what if this flood happens years after the cottage is built and the builder isn’t even around anymore? And what about insurance—would a company insure such a property without excluding flooding as an insured risk? Would a company insure it at all?
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Bottom line: it’s complicated. (Legal matters usually are.) As always, if you have concerns, you’re best to contact a lawyer directly and lay out the specifics of your particular situation.
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