Is It Safe to Look Up? An Introduction to Liability for Exterior Structural Failure

Partner, Robins Appleby LLP
  • May. 28, 2012

Darrell Gold

This article has been contributed by Darrell Gold LLB with Robins Appleby & Taub LLP

Last week in Montreal a 40-year-old man was in hospital after bricks from a three-storey building collapsed on him while he was walking on the sidewalk. A few hundred bricks came loose from the top of the downtown building and fell on him injuring him severely.

In Toronto there are at least two class actions currently filed in relation to broken glass balcony railings in major condominium buildings and the plaintiffs are seeking $20 million dollars in each action as a result of loss of use of their balconies.

Toronto’s 75 storey First Canadian Place, the tallest office skyscraper in Canada, has undergone a massive $100 million dollar retro-fit primarily to address replacement of its marble cladding due to falling marble façade panels in 2007.

Earlier this year in Lunenberg, Nova Scotia, inspections of a municipal building found deficiencies that “may cause the brick veneer on the outside of the building to fall as a whole, endangering anyone or anything below”.

Other recent exterior structural failures have occurred in the United States (Chicago and Baltimore) and Hong Kong.

This issue of exterior structural failure is a growing world-wide problem for every building whether new or old construction and as a result, public and private owners, condominium unit owners, condominium boards, property managers architects, engineers, manufacturers, contractors, installers, insurers and governmental authorities need to be aware of the issue and, as the Montreal incident indicates, it’s not just a problem for high-rise buildings – even walk-up and low rise buildings are at risk. It poses a significant potential hazard to property as well as person.

For prospective purchasers and lenders, an important proactive measure to take is to have a building condition audit carried out by an experienced accredited façade specialist. This will assist in determining whether or not to go firm and complete the purchase.

For existing owners/managers, regular building condition audits serve to identify the same issues and also allow for the implementation of a program to carry out future repairs/retro-fits in a controlled and staged manner. Some of the costs incurred may result in energy savings and other benefits and may also be chargeable back to tenants – if the repairs are not being made due to “inherent defects” which some tenants carve out from the lease costs that landlords can charge back.

Building Code changes are also being considered here and elsewhere to address the cladding and glass balcony issues. That may result in changes to materials that can be used and in what applications, licensing/certification of glaziers/installers (not currently required in Ontario) and new standards for testing of materials to check for climate effects on the materials over time etc.

The Lessons: If you want to learn more about this serious issue please join me on …

June 7, 2012 at 7:15 a.m. at the Hot House Café, 35 Church Street, Toronto where I will moderate an expert panel on: “The Structural Failure of Building Exteriors. A Legal, Engineering and Owner Perspective“.

We intend to address the following: Possible causes such as defective design, construction, installation and/or materials and climate change and condition; What municipalities are doing to address the issue; How new hi-rise construction is being impacted; What steps owners and managers should take to assess and deal with the risks; The role of building condition audits in assessing risks; The role insurance may play in the cost of repairs/replacements as well as claims for damage to person and property; Who may be liable and what limitations exist to 3rd party liability.

If you would like to attend and learn more, simply sign up by clicking on this link.

I look forward to seeing you.

Disclaimer: This article is for general information purposes only and not intended as or to be relied upon for legal advice. Consult with a lawyer for your unique situation.

[*If there is a general real estate or leasing related question you would like to see addressed in a future article in “The Legal Corner”, please contact me directly by e-mail at [email protected]d with your suggestion. Not all requests can be accommodated.]

Darrell Gold is a partner at Robins Appleby LLP and is responsible for the leasing component of its Real Estate Group. He has extensive experience and expertise in all aspects…

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Darrell Gold is a partner at Robins Appleby LLP and is responsible for the leasing component of its Real Estate Group. He has extensive experience and expertise in all aspects…

Read more

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