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Subject: Leak in Roof causes interior damages
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BillH10
(Texas)

Posts:281


09/25/2018 9:22 AM  
The subject says it all, or most of it anyway.

This subject has been raised on this forum and others in prior years; I am not reactivating an old thread. In my research, I noticed many posts agreed the association should be responsible for repairs, some however held ancillary damages, such as repainting, and in this case addressing damage to the carpeting, should be the responsibility of the owner. Others have held the owner is responsible based on language in the documents.

Details: roof leak was reported earlier in year, roof was repaired. 8"+ rains in DFW area resulted in more leaking. The contractor cannot tell if previously repaired leak area is at fault or if leak is emanating from nearby area. Contractor did make additional repairs involving sealing material and flashing. Governing documents have the usual horizontal and vertical plane language as well as the usual definition of owner responsible for "studs in".

Association attorney previously advised the association to pay for interior repairs as the roof is a common element and his experience has shown courts will back owners claim Association should be responsible for common element caused interior damages. Cost of repairs should be @ $1,000. If the association tells the owner to call his HO-6 carrier and a suit results, the costs will far exceed $1,000. Even if it goes to Small Claims court there will still be expenses, and a toxic relationship as a result. Deductible on association master policy is well in excess of $1,000.

I'd appreciate insight into how you have handled this, key learnings, etc.


Thanks
RoyalpitA
(South Carolina)

Posts:149


09/25/2018 9:44 AM  
the member's HO-6 policy will 'duke-it-out' with the HOA's

case closed
JeffT2
(Iowa)

Posts:400


09/25/2018 9:55 AM  
What is Texas law for insurance claims in condominiums? Do your own docs contain language for claims, deductible, etc.?

The usual procedure is for the owner to put in a claim. If necessary, the owner's insurance adjuster will contact the association's insurance company to work it out. It usually does not go to court, since the adjusters know the law and know that court will cost extra and they like to settle when possible.

If it does go to court, your insurance company will defend you at no extra charge, assuming you have the usual insurance package, which includes liability coverage.
RoyalpitA
(South Carolina)

Posts:149


09/25/2018 10:02 AM  
thank you for explain HOW

the member's HO-6 policy will 'duke-it-out' with the HOA's


RoyalpitA
(South Carolina)

Posts:149


09/25/2018 10:02 AM  
explaining
JenniferG12
(Texas)

Posts:103


09/25/2018 10:17 AM  
Posted By BillH10 on 09/25/2018 9:22 AM
The subject says it all, or most of it anyway.

This subject has been raised on this forum and others in prior years; I am not reactivating an old thread. In my research, I noticed many posts agreed the association should be responsible for repairs, some however held ancillary damages, such as repainting, and in this case addressing damage to the carpeting, should be the responsibility of the owner. Others have held the owner is responsible based on language in the documents.

Details: roof leak was reported earlier in year, roof was repaired. 8"+ rains in DFW area resulted in more leaking. The contractor cannot tell if previously repaired leak area is at fault or if leak is emanating from nearby area. Contractor did make additional repairs involving sealing material and flashing. Governing documents have the usual horizontal and vertical plane language as well as the usual definition of owner responsible for "studs in".

Association attorney previously advised the association to pay for interior repairs as the roof is a common element and his experience has shown courts will back owners claim Association should be responsible for common element caused interior damages. Cost of repairs should be @ $1,000. If the association tells the owner to call his HO-6 carrier and a suit results, the costs will far exceed $1,000. Even if it goes to Small Claims court there will still be expenses, and a toxic relationship as a result. Deductible on association master policy is well in excess of $1,000.

I'd appreciate insight into how you have handled this, key learnings, etc.


Thanks




Does your HOA even have flood insurance? Do the condo policies have it? It doesn't really matter because the HOA is responsible for the roof and whatever roof problems cause to other things, I am just curious.

JeffT2
(Iowa)

Posts:400


09/25/2018 12:08 PM  
Posted By RoyalpitA on 09/25/2018 10:02 AM
thank you for explain HOW

the member's HO-6 policy will 'duke-it-out' with the HOA's





Yep, that is what Bill asked for, when he wrote:
"I'd appreciate insight into how you have handled this, key learnings, etc."
JeffT2
(Iowa)

Posts:400


09/25/2018 1:36 PM  
Posted By JenniferG12 on 09/25/2018 10:17 AM
Does your HOA even have flood insurance? Do the condo policies have it? It doesn't really matter because the HOA is responsible for the roof and whatever roof problems cause to other things, I am just curious.



It is not that simple. The association has to breach its duty of care (negligence) before they are liable for whatever roof problems cause to other things.
CathyA3
(Ohio)

Posts:48


09/25/2018 2:52 PM  
My condo association's insurance agent explained that an insurable event must be sudden and unanticipated (eg. a tornado tears off part of a roof, resulting in water damage). We have "all in" insurance, and in this case the association's insurance would cover repairs to things like cabinetry and flooring, but not personal belongings. A roof leak, on the other hand, is considered a maintenance issue - in that case the association is responsible for repairing the roof and the homeowner is responsible for repairing any damage to the interior, including mold.

Surprisingly, negligence on anyone's part does not affect who pays for what, which seems unfair, but this is straight from the agent's mouth. The laws may be different in other states.
JeffT2
(Iowa)

Posts:400


09/26/2018 8:11 AM  
Bill, is this a condominium? If so, Texas has specific laws that would apply...
SheliaH
(Indiana)

Posts:2282


09/26/2018 9:57 AM  
Our master policy says homeowners are responsible for everything inside the unit, so they need to have homeowner's insurance or enough money to pay for those damages, while the master policy will pay for the roof repair. When I was on the board, we would remind homeowners on who was responsible for what and a month ago, we got a long letter from the association attorney that reviewed all of this again, along with citations from the CCRs.

In this case, I wonder if the age of the roof might also be an issue - you may have had good work on the repair, but maybe it's so old that what you really need is a new roof (usually required after 25 years or so, depending on wear and tear). You've also had rainfall of 8 inches or more - if that came all at once, that may have been too much for the roof.

I don't know if satellite dishes on the roof might be an issue, but it's possible if the installation wasn't good to begin with or someone's installed more than one dish because he/she has had different carriers. All of that stuff on the roof could also affect its function, in which case, I'd say the homeowner bears some responsibility, especially if you're in a townhouse community (we ban dishes on our roofs for that reason - which we can do because it's considered common area according to the FCC rule).

The big lesson learned in my experience? Periodic evaluation of the master policy is always a good idea - hopefully you have a good agent that can help you look at trends in your claims history and help come up with approaches that might reduce the association's risk (such as losing the policy due to too many claims). Periodic reviews of the roof would also be a good idea - catch small problems and take care of them before they turn into major problems that lead to a fight as to who's responsible for what. As coverage changes, advise the homeowners as well, so they know to review their policy with their own agents to ensure there's no under or over insurance coverage (the association covers what it covers and the homeowner has enough coverage for whatever is his/her responsibility)
BillH10
(Texas)

Posts:281


09/27/2018 9:03 AM  
Sorry guys, I've been pretty busy the last two days. Thank you all for your comments.

JeffT2 Iowa: The association documents spell out the owner is responsible for everything "inside" the surface of the drywall which touches the studs. You mentioned in a later post Texas has specific laws which apply in this instance. Could you point me to those?

JeniferG 12 Texas: The Association does not have flood insurance, they are not in a flood plain risk area. (Located between UT-Southwestern and Love Field)

After considering the language in the Bylaws (not much) and Declaration (lots), the Board has opted to tell the property owner he is responsible for the repairs and that he should file a claim with his HO-6 carrier. Of course he can simply pay for the repairs out of pocket, depending on the expense and his deductible. If he files a claim with his HO-6 carrier, they can, if they wish, subrogate.

Thank you again for your comments.
JohnC46
(South Carolina)

Posts:7772


09/27/2018 9:33 AM  
Posted By BillH10 on 09/27/2018 9:03 AM
Sorry guys, I've been pretty busy the last two days. Thank you all for your comments.

JeffT2 Iowa: The association documents spell out the owner is responsible for everything "inside" the surface of the drywall which touches the studs. You mentioned in a later post Texas has specific laws which apply in this instance. Could you point me to those?

JeniferG 12 Texas: The Association does not have flood insurance, they are not in a flood plain risk area. (Located between UT-Southwestern and Love Field)

After considering the language in the Bylaws (not much) and Declaration (lots), the Board has opted to tell the property owner he is responsible for the repairs and that he should file a claim with his HO-6 carrier. Of course he can simply pay for the repairs out of pocket, depending on the expense and his deductible. If he files a claim with his HO-6 carrier, they can, if they wish, subrogate.

Thank you again for your comments.




The above would have been my recommendation from the get go.
BillH10
(Texas)

Posts:281


09/27/2018 9:39 AM  
It was my recommendation as well; one member of the Board was wavering because the damage was caused by a failure in a common element.

I can see the point if the Association was negligent but the roof had been repaired when a leak in the unit was reported earlier in the year; the roof had undergone the annual inspection about about 10 days prior to the recent rain event.
JenniferG12
(Texas)

Posts:103


09/27/2018 1:09 PM  
It's not how I would go, given that the contractor cannot tell whether this leak is due to improper prior repair, but you've decided so keep us updated.

I presumed you do not have flood insurance and neither does the condo owner, I was asking because going to their insurance carrier won't do any good. They won't cover it. We have the HOA or our own pockets for water problems from nature.

Usually the HOA. We are not in charge of roofs and gutters and ground drains and my understanding is therefore not responsible for anything that happens connected to them unless of course WE are directly responsible through act or omission.
JeffT2
(Iowa)

Posts:400


09/27/2018 3:48 PM  
For Texas condominiums, Chapter 82, Uniform Condominium Act, Sec. 82.111, on insurance.

This section requires the condo association to have insurance on both the common elements and the units, meaning interiors. Your governing documents may also require insurance on units. You may not even know you have this insurance, unless you read your policy and endorsements. There is a lot in the statute on insurance (and probably in your documents as well).

However, you indicated that your insurance deductible is more than the damage ( @ $1,000). The statute has a section for that situation:

Sec. 82.111 (j):
"If the cost to repair damage to a unit or common element covered by the association's insurance is less than the amount of the applicable insurance deductible, the party who would be responsible for the repair in the absence of insurance shall pay the cost for the repair of the unit or common element."

Okay, so who is responsible party?

1.) If the association is negligent, then the association is the party responsible for repairing all damage to the inside the unit.

2.) The owner is responsible for interior damage including drywall (per your previous post about the drywall touching the studs).

3.) The association is the party responsible for common elements, such as water damage, dry out, and/or mold up to and including the studs.
JenniferG12
(Texas)

Posts:103


09/27/2018 7:32 PM  
82.111 specifies 'to the extent reasonably available'. Flood insurance is not reasonably available for everyone. Also, just to be super-accurate for future reference, it only applies to condos 'with horizontal boundaries', so one story condos, this would not apply.

JeffT2
(Iowa)

Posts:400


09/27/2018 10:17 PM  
My understanding is that flood insurance is different than insurance coverage for water damage from roof or pipes, which is readily available.
JenniferG12
(Texas)

Posts:103


09/28/2018 12:03 AM  
Posted By JeffT2 on 09/27/2018 10:17 PM
My understanding is that flood insurance is different than insurance coverage for water damage from roof or pipes, which is readily available.




Could be. I am not an insurance guru AT ALL. Learning as I go.

I got this from online:

"What's considered a flood?
A flood typically involves external water rising onto your land, such as you might get from an overflowing river, tsunami, mudslide — even heavy rains. Damage caused by flooding is generally not covered by your home insurance policy; you need separate flood insurance coverage.

What's considered water damage?
Water damage, on the other hand, involves instances of water hitting your home before touching the outside ground — and is usually covered by homeowners insurance. Depending on your home policy, things like a roof leak, busted pipe, faulty sump pump, or other plumbing issue, could all qualify.

Remember, because the distinction between flooding and water damage is so fine, it's always best to talk with your insurer after any incident."

So, to your point, if it is something that would be covered under the master policy, then they pay if it's under the deductible amount.

JenniferG12
(Texas)

Posts:103


09/28/2018 12:03 AM  
Posted By JeffT2 on 09/27/2018 10:17 PM
My understanding is that flood insurance is different than insurance coverage for water damage from roof or pipes, which is readily available.




Could be. I am not an insurance guru AT ALL. Learning as I go.

I got this from online:

"What's considered a flood?
A flood typically involves external water rising onto your land, such as you might get from an overflowing river, tsunami, mudslide — even heavy rains. Damage caused by flooding is generally not covered by your home insurance policy; you need separate flood insurance coverage.

What's considered water damage?
Water damage, on the other hand, involves instances of water hitting your home before touching the outside ground — and is usually covered by homeowners insurance. Depending on your home policy, things like a roof leak, busted pipe, faulty sump pump, or other plumbing issue, could all qualify.

Remember, because the distinction between flooding and water damage is so fine, it's always best to talk with your insurer after any incident."

So, to your point, if it is something that would be covered under the master policy, then they pay if it's under the deductible amount.

JeffT2
(Iowa)

Posts:400


09/28/2018 9:33 AM  
Posted By JenniferG12 on 09/28/2018 12:03 AM

So, to your point, if it is something that would be covered under the master policy, then they pay if it's under the deductible amount.



No, that is not how I read it. If the law applies (condo, horizontal boundaries, whatever else) and if less than the deductible, then the owner pays for their unit, unless the association is negligent.
JenniferG12
(Texas)

Posts:103


09/28/2018 3:59 PM  
Posted By JeffT2 on 09/28/2018 9:33 AM
Posted By JenniferG12 on 09/28/2018 12:03 AM

So, to your point, if it is something that would be covered under the master policy, then they pay if it's under the deductible amount.



No, that is not how I read it. If the law applies (condo, horizontal boundaries, whatever else) and if less than the deductible, then the owner pays for their unit, unless the association is negligent.




Well, it isn't worded like that, that section makes no mention of negligence. It says whoever would be responsible in the absence of insurance pays.

So it's back to who is responsible having nothing to do with insurance and Texas law does not address this that I am aware of. It depends on the governing docs.
MarkM31
(Washington)

Posts:381


09/29/2018 12:21 PM  
Posted By RoyalpitA on 09/25/2018 10:02 AM
explaining




How long before you resign this avatar from the board and then reappear with yet another? I don't know why you do that.
RoyalpitA
(South Carolina)

Posts:149


09/29/2018 12:49 PM  
why NOT ?
MarkM31
(Washington)

Posts:381


09/29/2018 12:51 PM  
If it flaots your boat
MarkM31
(Washington)

Posts:381


09/29/2018 12:51 PM  
Float
RoyalpitA
(South Carolina)

Posts:149


09/29/2018 12:55 PM  
floats


please maintain syntax when self correcting



MarkM31
(Washington)

Posts:381


09/29/2018 1:02 PM  
What a RPITA you are
RoyalpitA
(South Carolina)

Posts:149


09/29/2018 3:15 PM  
yes, but, once again, correct



laugh, it is free

GuyM1
(Ohio)

Posts:273


09/30/2018 11:07 AM  
Cathy, I think your agent didn't explain it good enough.

This is my opinion on all-in

Association would pay for the roof repair but also would pay for all interior damages but not the belongings of the owner. You did say yours is all-in which means the association is responsible for everything but the owner's property. The mold would be the association's problem too because it was a result of the roof leaking.
GuyM1
(Ohio)

Posts:273


09/30/2018 11:36 AM  
Bill

It seems you now that you are stating Drywall-in and not Studs-in?

Inside interior surfaces, the meaning is drywall is the common area, not unit area.
So drywall would be association responsibility to repair.

How much damage was caused?

I personally would sit down with the owner and work something out. Here my insurance wouldn't cover any damage from this situation. I know first hand on that in Ohio.

I would even argue with the Insurance company that this was an event that caused the damage and they should pay for all damages but not if needed the repair.

This kind of thing should also be discussed with all the members to come up with a rule that would let both the association and it's members know what would happen if it ever came up again.
CathyA3
(Ohio)

Posts:48


09/30/2018 12:37 PM  
Posted By GuyM1 on 09/30/2018 11:07 AM
Cathy, I think your agent didn't explain it good enough.

This is my opinion on all-in

Association would pay for the roof repair but also would pay for all interior damages but not the belongings of the owner. You did say yours is all-in which means the association is responsible for everything but the owner's property. The mold would be the association's problem too because it was a result of the roof leaking.




Yes, this would be the case if there is an **insurable loss** (water damage due to storms, broken pipes, etc.). To be insurable, the damage has to result from something that is sudden and unpredictable. Because mold is always the result of a continuous source of moisture over an extended period, it is considered a maintenance issue and not insurable. Thus the association repairs the roof and other common elements, and the homeowner is responsible for the interior of the home per the Declaration.

The real question is: does negligence on the part of the association turns a non-insurable loss (mold) into an insurable one? I doubt it, but I'd have to ask our agent. in the past I did ask specifically what would happen if we have an insurable loss due to negligence; for example, the homeowner goes away for the holidays and turns off the heat, leading to frozen pipes (this actually happened in my community, the unit plus the one below had to be gutted and rebuilt). The agent said that insurance doesn't look at negligence; it's who is responsible for what according to the CC&R's and the insurance policy.
GuyM1
(Ohio)

Posts:273


09/30/2018 1:18 PM  
Cathy

Just because it isn't covered by insurance doesn't take the responsibility away from the association.

Mold caused by water damage from the association common area is still the responsibility of the association.

Also, the Interior is part of the All-in it isn't part of the unit.

You say the unit is only property of the owner.

If the unit owner caused water damage or mold then they would be responsible not the association.

Read your doc's on who is responsible to repair, replace and maintain the common area.

Also, owners insurance company would deny the claim because it is association responsibility.

I think the way you say it to be that the common area is only the roof shingles and the siding or brick the rest is owner property which isn't all-in.
GuyM1
(Ohio)

Posts:273


09/30/2018 1:18 PM  
Cathy

Just because it isn't covered by insurance doesn't take the responsibility away from the association.

Mold caused by water damage from the association common area is still the responsibility of the association.

Also, the Interior is part of the All-in it isn't part of the unit.

You say the unit is only property of the owner.

If the unit owner caused water damage or mold then they would be responsible not the association.

Read your doc's on who is responsible to repair, replace and maintain the common area.

Also, owners insurance company would deny the claim because it is association responsibility.

I think the way you say it to be that the common area is only the roof shingles and the siding or brick the rest is owner property which isn't all-in.
CathyA3
(Ohio)

Posts:48


09/30/2018 2:33 PM  
I suspect we're saying the same thing in different ways, but just to be clear...

"All in" refers to an insurance policy only; it doesn't describe the provisions of the Declaration. Our Declaration states that the association is responsible for maintenance and repair of the Common Elements, and that the unit owner is responsible for maintaining and repairing the Unit as well as the Limited Common Elements attached to that Unit. In order to make the association responsible for maintaining parts of the Unit, there would have to be language spelling out the circumstances in which this happens. Our Declaration doesn't have that, and you can't read things into a Declaration that aren't there, no matter how "fair" or "reasonable" those missing things are.

In my community, if we have moldy drywall, it all depends if it resulted from an insurable event such as damage from a storm. If we have a leaky roof due to normal wear and tear that caused the mold, it's a maintenance issue and the Declaration governs. The association would be responsible for repairing the roof (Common Element) and framing (Common Element) as needed, and the owner would be responsible for drywall (Unit), insulation (Unit) and any utility or service lines inside the exterior walls that serve only that unit (Unit). Things change when "all in" insurance comes into play since you're no longer talking about maintenance. In this case, the association's insurance would cover repairs to the unit in excess of the deductible.

GuyM1
(Ohio)

Posts:273


09/30/2018 2:57 PM  
Your Doc's should state what the definition of common area and what is a unit.

Like mine says the unit is the Interior surface of walls, floors, and ceiling.
which means paint, flooring, and things like cabinets.

The common area all supporting walls, joists and foundations and things inside those spaces.

You follow State condominium law 5311?

Do you have an HO-6 policy?

I understand that you have changed the Doc's on who owns what but I would think this would be very confusing for the Association insurance company and the owner's insurance company.

I don't understand how that works?
CathyA3
(Ohio)

Posts:48


10/01/2018 5:10 AM  
Posted By GuyM1 on 09/30/2018 2:57 PM
Your Doc's should state what the definition of common area and what is a unit.

Like mine says the unit is the Interior surface of walls, floors, and ceiling.
which means paint, flooring, and things like cabinets.

The common area all supporting walls, joists and foundations and things inside those spaces.

You follow State condominium law 5311?

Do you have an HO-6 policy?

I understand that you have changed the Doc's on who owns what but I would think this would be very confusing for the Association insurance company and the owner's insurance company.

I don't understand how that works?




No, we haven't changed the Docs regarding the definition of "Unit" and "Common Elements". Drywall has always been defined as part of the Unit, and the owner is responsible to maintain that. A few years back we changed to a different legal firm, and the first thing they did was to review our docs to make sure they were in compliance with 5311, so we're solid there.

I think we're getting stuck because we're conflating routine maintenance with an insurable event. Our docs clearly state that the unit owner is responsible for routine maintenance of all parts of his unit as well as the limited common elements attached to that unit. However, the docs also require "all in" insurance that covers certain parts of the unit and limited common elements in the event of an insurable loss. Around here all instances of mold have resulted from routine wear or failure of certain components - not insurable events - thus the owner is responsible for the drywall repairs per the declaration, insurance doesn't come into play here.

Yes, it's weird and confusing, and our insurance agent says that even the pros scratch their heads over it. However, I'm pretty sure that you can't have an external agreement (insurance policy) changing the terms of a contract (the declaration). So using the policy to justify the association paying for routine maintenance of the unit is legally pretty shaky, I would think. But I'm not a lawyer or an insurance agent, so consider my comments to be worth exactly what you paid for them. :-)
JeffT2
(Iowa)

Posts:400


10/01/2018 8:36 AM  
Posted By JenniferG12 on 09/28/2018 3:59 PM
Posted By JeffT2 on 09/28/2018 9:33 AM
Posted By JenniferG12 on 09/28/2018 12:03 AM

So, to your point, if it is something that would be covered under the master policy, then they pay if it's under the deductible amount.



No, that is not how I read it. If the law applies (condo, horizontal boundaries, whatever else) and if less than the deductible, then the owner pays for their unit, unless the association is negligent.




Well, it isn't worded like that, that section makes no mention of negligence. It says whoever would be responsible in the absence of insurance pays.

So it's back to who is responsible having nothing to do with insurance and Texas law does not address this that I am aware of. It depends on the governing docs.



I agree, sort of, with a few comments.

The unit owner can make an insurance claim, because the owner's deductible is likely less than the $1,000 damage. So we are back to where we started. Let the owner make a claim.

I think the legislators who wrote the law probably congratulated themselves on writing the shortest possible sentence that we would need to puzzle over and refer to other provisions and precedents to figure out the meaning. Instead of spelling it out, the law says: "the party who would be responsible...".

The responsible party depends on the maintenance responsibilities in the governing docs, and also on state law and court decisions regarding negligence and liability. State law overrides the governing docs. The law does not mention negligence, but it is implied (responsible party).

The big mistake that many associations make is to automatically pay for any damage that starts in the common elements (which would be "strict liability," which does not usually apply). The Texas law has a lot of requirements for the association, but does not say the association automatically pays.
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