- Hamilton Law Association

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- Hamilton Law Association
Real Estate News
Tony Smits
Kitec, IPEX, XPA and the kitchen
sink…
W
hen is the last time you took
a peek at the pipes under a
kitchen sink? Now may be
the time, especially if you are in the
market for a new home. If you see the
usual cobwebs and drab copper pipes
you may be ok. If you see orange and
blue plastic pipes, you may be in for a
surprise…
These fixtures are known as Kitec
plumbing and were also sold under
the names Kitec, PlumbBetter, IPEX
AQUA, WarmRite, Kitec XPA, Am-
bioComfort, XPA, KERR Controls or
Plomberie Améliorée. Kitec plumbing fixtures were initially endorsed by
industry professionals and installed in
homes and condominiums between
1995 and 2007 as a more affordable,
corrosion-resistant alternative to copper pipes and fittings. The fixtures
were later recalled around 2005 due to
an acknowledged concern by the manufacturer that the fittings may experience a premature failure rate, resulting
in flooding and property damage.
A class action law suit was commenced in November 2011 regarding
these plumbing fixtures and a settle-
ment agreement was made on January 9, 2012. As part of the agreement
a $125 million settlement fund has
been created to provide compensation
for repairs for buildings, residences,
homes and other structures and claims
are currently being processed and paid
out. The deadline for filing a claim is
January 9, 2020. The Kitec plumbing
system settlement website suggests
that even if you have not experienced
a leak with this type of plumbing fixture you should file a claim. Similarly,
insurers can also file a claim under the
settlement. For more information, including how to identify this type of
plumbing fixture as well as disclosure
requirements for owners of properties
with Kitec plumbing, visit the FAQ
Kitec settlement web page at http://
www.kitecsettlement.com/faq.cfm.
Recently, the Real Estate Council of
Ontario (RECO) has indicated that
the existence of Kitec plumbing in a
home can be considered a “material
fact” under section 21 of the Real Es-
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HLA Journal
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August 2015
tate and Business Brokers Act Code of
Ethics. This suggests that real estate
agents and brokers have an obligation
to make inquiries regarding the type
of plumbing fixtures in a property and
that home owners have a responsibility to disclose the existence of Kitec
plumbing fixtures to their real estate
agent and any potential purchasers.
Material Facts are defined as facts that
would affect a reasonable person’s decision to acquire or dispose of an interest in property.
RECO has reiterated that real estate
agents have a twofold duty with respect to the properties that they are assisting their clients to buy or sell: take
reasonable steps to determine the material fact and promptly disclose those
facts to the client.
If there are concerns about the existence of this type of plumbing fixture,
insert a home inspection condition in
the Agreement of Purchase and Sale
and, if Kitec fixtures are found, have
a licensed plumber examine the property. A licensed plumber may have
more substantial knowledge of Kitec
fixtures and specific issues that may
need to be addressed. These orange
and blue pipes may be visible in and
around the hot water heater, under the
kitchen sink and under the bathroom
vanities. There may also be a notice
on the electrical panel notifying electricians not to ground to the water
pipes as they are not metal.
If it is determined that Kitec plumbing fixtures have been installed on
the property, be sure to ask follow up
questions about whether the owners
have filed a claim from the settlement
fund, have made an insurance claim or
have had any issues with water pipes
leaking or bursting. If any of these issues exist, consider obtaining a quote
to repair/remove the existing fixtures
and request an abatement of the pur-
chase price. Notify your home insurance company as soon as possible of
the existence of Kitec plumbing fixtures and ask whether they will still
provide home insurance for the property. Some insurers may not insure
homes with Kitec plumbing. Alternatively, if the estimated repairs are too
expensive, an insurer is unwilling to
insure the risk, or other concerns have
not been addressed to your satisfaction, consider searching for another
property.
Finally, if you are selling a home
which contains Kitec plumbing fixtures, disclose this fact to your real
estate agent in order to avoid any potential issues in the future, especially
if these fixtures are not readily accessible or visible. If you are a home
owner that has filed a claim form under the Kitec class action settlement,
you must advise potential buyers and/
or subsequent owners that you have
filed a claim. 
Tony Smits was called to the Bar in
2010 and is a Partner at Smits Groves
LLP, located at 35 Main Street North,
Suite #24C in Waterdown, Ontario.
He mainly practices in the areas of
Real Estate, Wills and Estates and
general litigation.
FAMILY DISPUTE RESOLUTION
MEDIATION • MEDIATION-ARBITRATION • ARBITRATION
Richard W. Shields, LL.B., M.A., LL.M., Ph.D.
Lawyer Mediator Arbitrator Trainer
Certified Specialist in Family Law – Law Society of Upper Canada
Certified Comprehensive Family Mediator – Family Mediation Canada
Chartered Mediator & Chartered Arbitrator – ADR Institute of Canada
Certified Family Mediator & Certified Family Arbitrator – ADR Institute of Ontario
Accredited Family Mediator – Ontario Association for Family Mediation
[email protected] • 905-648-5903 • www.FamilyDisputeResolution.com
HLA Journal
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