Iron ochre: covered or not covered by the warranty?

One of your former customers contacts you a few years after taking possession of his residence after noticing the presence of a reddish and viscous mud in the drainage system of his building. According to him, there is no doubt: the ferruginous deposit reveals the presence of a ferrous ochre problem. Is it covered by the regulated warranty plan for new residential buildings?

First of all, you should know that the Régie du Bâtiment du Québec defines ferrous ochre as follows: “Iron ochre is the result of a chemical reaction or a biological process, both of which can occur individually or simultaneously:

• Chemical reaction: when the soil contains iron, it migrates with the water to the drain and forms an iron hydroxide sludge in contact with the air.
• Biological process: when the ferrobacterium is present in the groundwater, it produces, as a result of the oxidation of iron in contact with air, it produces a gelatinous mass.¹”

This means that the problem arises essentially from the site of construction, but not from the construction itself, although it can cause certain problems there, in particular the clogging of drains that can cause water infiltration.

In this regard, the Tribunal has already indicated that “a construction in ferrous soil is not problematic if, alternatively, the height of the groundwater table is not problematic and/or the drainage system is adequate and that (in some cases) periodic maintenance of the system is addressed²”. In short, the Tribunal considers that the groundwater level is a catalyst for iron ochre. However, the mere presence of this bacterium is not enough to cause disorders but it is an aggravating factor.³

It should be noted that the presence of ferrous ochre alone does not constitute a defect eligible for warranty and that it is necessary to look at the impacts of iron ochre, as an aggravating factor, on the building to determine whether they are eligible for warranty coverage.

Thus, in accordance with article 10 of the Regulation on the guarantee plan for new residential buildings, the admissibility of the claim will result from the classification of the problem as a defect, a hidden defect or a construction defect, in a context where the later the situation is reported after the reception of the building or the completion of the work, the more serious it must be in order to benefit from warranty coverage.

For example, the Tribunal has already ruled in iron ochre cases concerning the fear of a drain obstruction that “the assertion of the presence of a danger or the apprehension of a potential problem is not proof of a problem really affecting the structure. ⁽⁴⁾ ”, just as he has already ruled that “arbitral jurisprudence usually requires that foundations be built in the groundwater in order to declare that an iron ochre problem is a major defect. ⁽⁵⁾ ”.

In short, the eligibility of a claim for an iron ochre problem is assessed according to several criteria, on a case-by-case basis. In order to avoid inconveniences, the contractor aware of the presence of iron ochre in a region will therefore have every interest in paying particular attention to certain aspects of its construction, in particular the level of the basement concrete slab above the groundwater table and the installation of a cleaning chimney.

DID YOU KNOW THAT?
According to article 125 of the New Residential Buildings Guarantee Plan Regulations, the expenses incurred by the interested parties and the administrator in conducting the arbitration (for example, printing costs and extrajudicial fees paid to the lawyer) are borne by each of them.

¹ https://www.rbq.gouv.qc.ca/citoyen/acheter-une-maison-neuve/problemes-particuliers/ocre-ferreuse.html
² Larouche and Habitations Clo-Bel Inc., Me Michel A. Jeanniot, arbitrator, Conflict Resolution Society Inc. (SORECONI), 070926001 and 044872, 2007-12-14.
³ Kuzma and Grilli Real Estate Group Inc., Me Michel A. Jeanniot, arbitrator, Conflict Resolution Society Inc. (SORECONI), 071207001 and 041975, 2008-05-30.
⁽⁴⁾ Hecht Gaertner and Réseau Viva International Inc., Me Johanne Despatis, arbitrator, Customized Arbitration and Mediation Group (GAMM), 2009-13-002 and 132155-1 (09-362SP), 2009-12-23.
⁽⁵⁾ Syndicate of Condominium 51 Carmel and 140607 Canada Inc. (Construction Ro-Bert), Me Philippe Patry, arbitrator, Canadian Commercial Arbitration Center (CCAC), S11-080101-NP and 11-356FL, 2012-04-09.

‍

Consult the source publication