The applicant was an owner of a class A unit who sought to recover the cost of repairing damaged electricity cables leading to his apartment caused by rodents and/ or other pests. The basis for this action against the owners corporation was that the electricity cables were ‘common property’ and consequently the owners corporation:
- breached the statutory duty in section 24 of the UTMA by failing to repair and maintain those common property electricity cables; or
- was negligent in failing to repair the electricity cables as the presence of rodents and/or other pests was a foreseeable risk.
ACAT held that while the roof space above the applicant’s unit was common property and therefore subject to the maintenance obligation under the UTMA, the electricity cabling within that common property was a utility conduit. Section 24(1)(e) of the UTMA holds that an owners corporation must maintain a utility service if it is provided for the potential benefit of all units. The respondent argued that the electricity cables delivered power to the applicant’s unit only. The applicant offered no contrary evidence. Consequently ACAT held that the owners corporation was not required by the UTMA to maintain the electricity cables.
Turning the argument regarding rodent control, ACAT accepted the submission of the respondent that, while the roof was common property, testing for rodents and/ or other pests would be impractical and unnecessary in circumstances where there is no evidence or suggestion of a pest causing any damage. Consequently, ACAT refused to make a finding of negligence on the part of the owners corporation.