Real Estate

Relief available for property owners with defective Kitec piping

There is some relief available for commercial, industrial and residential property owners who have recalled Kitec piping installed, writes Toronto condominium lawyer Deborah Howden in a recent issue of Lawyers Weekly.

“In the real estate and construction industries, ‘Kitec’ is a bad word and not just your run-of-the-mill dirty word,” she writes. “In plumbing, Kitec is the dirtiest, most cursed word of them all, and for good reason: Kitec piping is inherently defective and will prematurely fail, say most experts. The failure is sometimes catastrophic.”

Howden, partner with Shibley Righton LLP, writes that the defective piping was installed in approximately 292,000 properties across North America between 1995 and 2007.

The initial appeal of Kitec piping was that it was a cheaper and easier-to-install alternative to copper piping, she writes, but the fittings are made with a high level of zinc content and when they react with the chemical composition of the pipe, they leach zinc into the pipes.

“This in turn causes the fittings to degrade and corrode, or results in zinc oxide buildup in the piping with an ensuing restriction of water flow,” Howden writes in Lawyers Weekly.

“There have also been reports of running hot water at too high a temperature causing actual disintegration of the pipe. In any case, the result can be a catastrophic failure of the plumbing system best described in the vernacular as a ‘gusher.’”

The fittings were first recalled in 2005 and since then, a class action was initiated in the U.S. and Canada that was settled in 2011. This settlement creates a US$125 million settlement fund, Howden writes.

However, the settlement amount included class counsel’s legal fees, costs and expenses (US$25 million) and there were also notice, inspection and claims administration costs.

“In the end, the plan of distribution estimated that no less than $93.8 million would be available for class member payments under the settlement,” she writes.

Howden explains in the article that while this amount may seem adequate, the settlement fund is for properties in both Canada and the United States.

She points to one condominium corporation in Toronto that recently learned it had Kitec piping and notes the estimated cost to replace the piping is $5.5 million.

“On that scale, only 17 such buildings could be fully repaired until the fund is wholly depleted,” Howden writes.

She writes that those who are eligible claimants under the fund have until Jan. 9, 2020 to file a claim under the settlement.

“Payment under the settlement fund depends on how the Kitec pipes and fittings were installed at the property. That is, there are varying amounts to be paid depending on whether the pipes are open and accessible, located behind drywall or installed in concrete,” she writes.

“In any event, any owner who has suffered through a Kitec piping malfunction and who has not previously opted out of the settlement should file a claim.”

Howden also notes that property owners who have not experienced a Kitec piping failure are encouraged to submit a claim form.

“If there are sufficient funds remaining after Jan. 9, 2020, there may be a prorated distribution of funds, though we strongly doubt any such monies will be available,” she concludes.

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