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Subject: Condo water damage from upper unit
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Author Messages


08/25/2007 8:22 AM  
I'm trying to make a determination for my 10 unit condo in regards to how to proceed with a recent plumbing issue. A leak has caused a 4' x 2' hole in the ceiling of ground floor unit. According to a plumber who was called, the pipe responsible is a drain pipe connected to the upstairs' bath, and is not a common pipe, however, it is not directly accesible from the above unit. 've been reading our covenants, and I really don't find much regarding such issues, unless the fault is due to mischief or negligence. Since the pipe isn't common, I'm thinking it may be the upstairs unit that will need to fund the repair and that the two unit owners need to get with each other's insurance companies, leaving the Board complety out of it. The location of the pipe has me also thinking that this may need to be handled by the Association. Anyone have any ideas on how best to move forward?


08/25/2007 8:46 AM  
It seems probable that you and the plumber mean something quite different when you use the same word, "common." He probably means it serves only that bathtub and no other, while you are talking about common ownership, and he is in no position to determine that.

Most condos but hardly all, use a bare walls definition, where you only own and are responsible for the wall surfaces you see and everything inward of that, while the building (association) owns everything outside that. You need to determine how your declarations define unit boundaries.

In our Minnesota building, it is defined with the statute, and works as above.

Good luck
(South Carolina)


08/25/2007 1:16 PM  
Now this one I have our answer. We have declared that anything from where the unit drain pipes empty into the main drain is owner responsibility. Our units all have individual feed for water and drains to each unit. So the upstairs unit is responsible. But it doesn't end there. Who is responsible for enforcing the action and recovering damages. After much discussion and a lot of time it was decided that, legally the action had to be between the two owners. So, what the board says doesn't enter into the matter at all. During the acute period where water is leaking and we have have damages in the thousands, our manager will notify both owners, take emergency measures as required and any bills will be given to both owners.

So, it then beecomes an insurance problem between the owners, here or absent. The Regime can not enter into the fray except to explain our rules, etc. and assistance of a passive nature. Now, if the responsible owner does not repair the cause whether it be pipe, or drain or ice maker or what have you, the regime will take steps to repair the cause and bill, then lien if necessary, the offending owner. Any accountable time by the manager will also be billed by Regime to owner of cause.

The above may takes months and may mean outlays of money by the owner of the lower unit but in the end, damages are between him and his upper neighbor.
Any damage done to common areas, the regime becomes a party to action to right the damage.
(New York)


08/25/2007 7:46 PM  
MarcW - The HOA is not responsible. The settlement for damages needs to be resolved by and between the insurance companies of the individual unit owners. End of story.


08/26/2007 10:11 AM  
I think your original thinking is correct. The two owners will have to contact their OWN insurance companies. If those insurance companies decide that the HOA had responsibility, they will contact the HOA's insurance. However, expect the claim to be denied on the HOA's part.

Welcome to the Insurance game. I believe your going to hear the words "lawsuit". Don't panic and lawyer up too fast. This is how many insurance companies settle claims amongst themselves. It really depends on how the insurance company handles their claims. Some will pay the claim themselves and then send the bill to the other insurance company for collection. (or individual if no insurance). If that insurance company refuses to pay, they may sue the insurance company. Now, during the "investigation" the insurance company may try to involve the HOA (Condo). They may try to say it was a "common pipe" and get their own expert opinion. I would contact the "Condo's insurnace" company to handle the matter. Don't deal with the insurance companies yourself unless it's your own.

Yes, this will be a mess for a few months. However, you seem pretty smart and have the situation figured out pretty well. Suing your HOA is suing yourself and your neighbors, so hold off on the legal council until there's a real need. Not saying that a lawsuit won't be mentioned but don't overreact and panic. See your options. (Filing a countersuit may be the best option if anyone does sue don't pursue a suit if you represent the condo board). Good luck!!! Keep your head up for air!

Former HOA President


08/26/2007 6:22 PM  
MarcW, I agree with the other posters that the issue does not involve the HOA/Condo, and is between the two owners.

I however disagree that the upper owner is exclusively responsible. From what I understand, the upper owner is only held liable (by insurance claims) if he/she KNEW the damage was there, and ignored. If a pipe burst and damage occurred - then the lower unit's owner would need to file claim for repairs. If the upper unit owner KNEW that this was going to happen, failed to address, and then damage occurred then the upper unit owner was responsible.
(South Carolina)


08/26/2007 6:34 PM  
I am pleased to say, I believe you to be closer to the truth. I have seen this happen and that issue was addressed, however with both parties not present at the time a big question was uprooted that the reason for the flood was a water pipe connection failed. Since the upper unit was in the process of being renovated and the connection was made by the contractor, what happens. And of couse time was a factor because the damage happened over hours. So at that point, it became a fight between each owners insurance company and the contractor and his insurance and the regime and that insurance. Not sure exactly what the result was but I suspect there was some heavy negoiations going on with lots of bills being sent to this one and that one. Not a pretty picture.

Your judgement on a situation where neither party is present and a toilet gives way. Who gets to pay?


08/26/2007 9:51 PM  
RobertR1, from the original post there is no mention of any rehab/renovations being performed in the upper unit - just that the pipe broke, plumber called, etc. I know you tossed that in as a comparison to your example that follows.

Under that situation, and the additional one you presented (toilet overflows, no one present, etc), the solution/responsibility is still the same - the lower unit's owner and/or insurance company is still the primary for repairing. Unfortunately your usage of "who GETS to pay..." phrase examples the real headache in these kinds of situations. I'd "hope" that the upper unit owner would stand up to his/her responsibility and do everything possible to assist the lower unit owner (pay deductible, etc). Will that happen, depends on the character of the upper owner. It also depends on the character of the insurance company. We have all heard about the insurances companies who "wrangled" clauses (wind versus water/flooding) in response to claims resulting from Katrina.

Tough sell I am sure, crappy outcome all around.... maybe that is what insurance companies want? maybe this is a direct result of overhead, silly lawsuits/claims, cost of doing "business," etc. This ultimately pits neighbor against neighbor in situations like this. Add in typical HOA/Condo "apathy" where you often do not know neighbors, perfect combination for mistrust, and anger.

(South Carolina)


08/27/2007 6:19 AM  
Aha! Another thing I forgot about that clouds the picture further.
Suppose there is reference in our Documents about this kind of situation. Suppose it is written that the upper unit is responsible for any damage from water leaks to the lower unit. Our condo has decreed that the windows and doors are now the responsibility of the owners. We have had situations where faulty doors and windows caused water damage below.

Personally, I think the whole thing is screwed up, but I can understand the actions of the board as an attempt to keep regime expenses down. I expect these kind of situations, especially in older complexes, have to be dealt with by the board and even if it skirts the documents, it may just be the prudent action to take. I also believe this kind of solutions happen all the time in condos and HOA. My problem is with doing this kind of stuff in the dark and no reports of substance are made. Then when it happens again, because no record of the solutions are available, you start the process all over again, probably with new people.

This is the fine art of musing!
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