Maintenance and Repairs

August 2, 2022 Published by Toronto and Area Chapter - By Inderpreet Suri

What To Do About Kitec Pipes

From the Summer 2022 issue of CCI Toronto Condovoice Magazine, Volume 26, Issue Number 4

What are Kitec Pipes and Why are they Problematic

From the mid-1990s until about 2007, Kitec pipes were installed in houses, low and high-rise residential buildings, and other structures in various places in the United States and Canada.

The piping was marketed as a cost-effective alternative to copper piping that was also easier to install than copper piping. It was one of the "go-to" piping systems at that time and was widely used. Eventually, numerous homeowners started experiencing problems with the piping such as burst pipes which caused major flooding.

Kitec pipes often fail at an accelerated rate because of two reasons. First, the pipes' brass fittings have a high zinc content and are subject to premature failure due to a process called dezincification. Also, the layered polyethylene aluminum piping itself is also considered to be defective as it is subject to an increased risk of rupture over time (particularly when exposed to hot chlorinated water).

As the Kitec pipes and fittings continue to deteriorate over time, they can burst and cause a flood. Unlike copper pipes (whose leaks usually begin as a slow drip), the manner in which Kitec piping fails (bursting) usually causings extensive damage in a very short period of time. Although it is difficult to estimate the lifespan of Kitec pipes, Kitec pipes they can start to break down and fail approximately 8-10 years after they are installed. The failures increase in frequency after the 8-10 year mark.

A class action lawsuit against the manufacturer and associated companies was commenced in 2007 and settled in 2011. Further details about the class action lawsuit are provided below.

What to do about Kitec pipes in condominiums?
Kitec pipes can be easy to spot. They are usually either bright orange or bright blue in colour and are used to carry domestic water to taps and other fixtures within a condominium unit.

Condominium boards and managers should retain an engineering company to review their building's domestic water system in order to determine whether Kitec pipes and fittings have been installed in the building.

If Kitec pipes were installed in the building, the condominium should work with the engineering company and a reputable contractor to replace the Kitec pipes and fittings throughout the building as soon as practicable. The engineering company can help guide the condominium as to a suitable replacement for the Kitec pipes. A city permit will also likely be required for this replacement work, which the engineering company and contractor can also assist with.

Depending on the condominium and the maintenance/repair obligations in the condominium's Declaration, the condominium can direct the unit owners to carry out the work on their own using their own qualified contractor. Alternatively, the condominium can replace all of the units' Kitec pipes using its own contractor and charge back the associated costs to the specific unit. The latter approach is often preferable because conducting a building-wide replacement project with the same contractor results in significant cost-savings for all parties involved and helps the condominium ensure that all defective pipes have been replaced.

What if a unit owner refuses to replace the Kitec pipes in his/her unit?
If a unit owner refuses to replace the Kitec pipes in his/her unit or refuses to allow the condominium to enter their unit to perform this work, a condominium corporation can, in the author's opinion, replace the Kitec pipes in the unit and charge back all associated costs to the unit.

Provisions in the Condominium Act, 1998 allow a condominium corporation to enter a unit (upon providing reasonable notice) and replace the unit's Kitec pipes because the unit owner's failure to replace them constitutes a potential risk of damage to the condominium's property and persons on the property. Once the work is done, any associated costs can be collected from the unit owner in the same manner as common expenses.

When a condominium owner prohibits the condominium's agents from entering the unit to do the work, the condominium can apply to the Superior Court of Justice for help. The condominium can apply for a compliance order directing the owner to allow the condominium's agents access to the unit to carry out the work at the owner's cost.

There have been several successful cases in which the court has granted compliance orders for the replacement of Kitec pipes, such as TSCC No. 1724 v. Evdassin, 2020 ONSC 1520, and YRSCC No. 972 v. Lee, 2021 ONSC 3877.

What's happening with the class action lawsuit?
The class action lawsuit was settled in about 2011. A settlement fund of 125,000,000 USD was created to pay for legal costs and to pay for repairs where eligible.

Unfortunately, the deadline to submit a claim was January 9, 2020. If you qualify as an eligible person and have missed this deadline, there is likely nothing further you can do. The settlement website, http://www.kitecsettlement.com/, provides the case documents and details as to who qualifies as an eligible person and how to apply for payment under the settlement fund.

If you did qualify as an eligible person and filed a claim before the deadline, the website states that they are working on obtaining the courts approval on the final plan of distribution. The courts must approve the plan before any funds can be distributed to the eligible persons.

The website advises that the entire process has suffered delays due to the ongoing COVID-19 pandemic, social unrest in Louisville, United States (where the claims administrator is based) which required a complete closure of the claims administrator's office, and resulting delays in the delivery and processing of mail.

The website was last updated on March 2022.

Parting Thoughts
Kitec pipes are a serious problem and should not be taken lightly. If you suspect that your condominium building or unit has Kitec pipes, follow the steps in this article to address the issue as soon as possible. The damage can be catastrophic and cost thousands of dollars to repair.