Get 1 year of free community web site hosting from Community123.com!
Wednesday, October 27, 2021











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Toilet Leak - 2nd floor condo
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
PatJ1
(North Carolina)

Posts:254


10/10/2021 2:24 AM  
Upstairs condo refuses to address a toilet leak because they don’t see any water upstairs.

January, 2021 – Toilet leak staining downstairs ceiling. Water traveling to ground in wall stubs. Owner refused to bring in a plumber. HOA interceded, hired a plumber. Plumber determined leak is caused at the base due to a recent uneven floor installation. Plumber would not repair because 1/2” gap at base. Owner brought in a handyman to repair.

September, 2021 – Same toilet. Water leaking through exhaust fan in ceiling. This time there was also another leak in the tub area. Buckets were used downstairs to catch water. Upstairs refused to address. HOA interceded again. 2nd plumber, another one, also determined that the uneven floor was not allowing for a good toilet install. Shimmed the toilet in place and replaced the tub spout leaking at threaded connections.

October, 2021 – Same toilet leaking again, small leak. Condo is now vacant. Water running inside wall to ground. Leak appears when someone is upstairs and flushes the toilet. Advised owner that the HOA will re-call September, 2021 plumber to investigate. Owner hires their own plumber. They come, flush the toilet 2-3X, wait downstairs for 5 minutes and determine it’s a rainwater leak.

Owner has been charged back for all HOA plumbing bills.

Owner is combative and is refusing to address the repair stating it’s not their toilet. There is raw sewage leaking down from upstairs. It’s their floor renovation not allowing the toilet to sit level. They now want to talk to someone else. Haven’t yet told them that I’m it.

Until the uneven floor is fixed, any repair will fail. How does the HOA proceed? HOA does have a “right to enter”. Can we exercise this right and fix her floor?

***14.RIGHT OF ENTRY INTO CONDOMINIUM UNITS IN EMERGENCIES AND FOR MAINTENANCE OF COMMON PROPERTY. In case of any emergency originating in or threatening any Condominium Unit, regardless of whether the Owner is present at the time of such emergency, the Board of Directors of the Association, or any other person authorized by either, shall have the right to enter such Condominium Unit for the purpose of remedying or abating the cause of such emergency, and such right of entry shall be immediate.***



Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
CathyA3
(Ohio)

Posts:2475


10/10/2021 4:46 AM  
I'd recommend running this past your association's attorney first(*), but raw sewage is an emergency in my book. It may also suggest a bigger problem than the toilet alone - if the upstairs owner replaced flooring, they may have damaged pipes.

(* I recommend getting the attorney's blessing first to make sure the association complies with any requirements on noticing the upstairs owner and the need for impartial witnesses, and because the upstairs owner is being a jerk and may try to sue. In my area, either the police or the fire department can force entry if need be.)
AugustinD


Posts:1695


10/10/2021 7:23 AM  
-- I agree with CathyA3 that this is quite serious and an emergency.The raw sewage in particular has huge implications when it comes to (1) risks to the downstairs owner's health and (2) repairs.

-- If you are not using an attorney at this time, then hire one, and get her/his opinion a.s.a.p. I would think at a minimum the attorney will want to send a demand letter like yesterday stating in no uncertain terms what will happen next and that the upstairs owner needs to keep the association informed of every step the upstairs owner is taking.

-- I would think the association's not taking strong and immediate action holds it out to liability to the downstairs owner.

-- I would be far less concerned about any threats the upstairs owner is making.

-- I would be querying the appropriate departments of the city and state about health concerns and whether the city or state needs to be involved or deems they need to inspect the building.
PatJ1
(North Carolina)

Posts:254


10/10/2021 8:32 AM  
Posted By AugustinD on 10/10/2021 7:23 AM
-- I agree with CathyA3 that this is quite serious and an emergency.The raw sewage in particular has huge implications when it comes to (1) risks to the downstairs owner's health and (2) repairs.

-- If you are not using an attorney at this time, then hire one, and get her/his opinion a.s.a.p. I would think at a minimum the attorney will want to send a demand letter like yesterday stating in no uncertain terms what will happen next and that the upstairs owner needs to keep the association informed of every step the upstairs owner is taking.

-- I would think the association's not taking strong and immediate action holds it out to liability to the downstairs owner.

-- I would be far less concerned about any threats the upstairs owner is making.

-- I would be querying the appropriate departments of the city and state about health concerns and whether the city or state needs to be involved or deems they need to inspect the building.




We are on it! We are trying. Tenant has already reached out to city code enforcement and their MC, a Social Services MC. Doubt owner has any idea of what's going on because the management company does not have a direct contact due to a position vacancy. Renter's MC sends a plumber over and determines it's upstairs and that ends their involvement.

Tomorrow we are seeking attorney guidance.

This situation has been difficult. Occupant is a renter. HOA's MC responds to owner's. MC will respond with owner's MC with proper authority from owner. Renter reached out to HOA for assistance.

This owner will be getting directives from the HOA attorney shortly. Anyway we can bill the upstairs owner for our attorney fees?

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
KerryL1
(California)

Posts:8620


10/10/2021 8:41 AM  
Yes, per your citation, Pat, your assn. has the right. to enter this unit and make whatever repairs re needed to protector other condos and your common areas. In stacked condos, any water leaks are emergencies because of the damage they can do to the common areas or other condos.

Do your CC&Rs also have an enforcement clause? This would say that if an owner causes damage, they damage can be fixed by the HOA and the Owner would be billed after a hearing. Has your Board/PM sent th owner a letter yesterday requiring them to fix the floor that they made uneven?

With others, do get a proper attorney's opinion. How many units are there in your assn., Pat. Are they all two stories tall, or are they taller?
AugustinD


Posts:1695


10/10/2021 8:51 AM  
Posted By PatJ1 on 10/10/2021 8:32 AM
Anyway we can bill the upstairs owner for our attorney fees?
I too was thinking about this. I would be checking the CC&Rs for verbiage about assessing costs, to individual owners, to enforce the covenants when said owners violate these covenants.

State statute might have something to say on this as well.
PatJ1
(North Carolina)

Posts:254


10/10/2021 9:01 AM  
Posted By KerryL1 on 10/10/2021 8:41 AM
Yes, per your citation, Pat, your assn. has the right. to enter this unit and make whatever repairs re needed to protector other condos and your common areas. In stacked condos, any water leaks are emergencies because of the damage they can do to the common areas or other condos.

Do your CC&Rs also have an enforcement clause? This would say that if an owner causes damage, they damage can be fixed by the HOA and the Owner would be billed after a hearing. Has your Board/PM sent th owner a letter yesterday requiring them to fix the floor that they made uneven?

With others, do get a proper attorney's opinion. How many units are there in your assn., Pat. Are they all two stories tall, or are they taller?




Kerry,

We have 144 units, 2 story's tall. We are 42 years old. 20 buildings with 4-8 units each.

Hadn't even thought about bringing the owner to a hearing or what our 42 year old governing documents say about enforcement. Hearings are a PITA and focus has been on a remedy.

We notify owner's that if a maintenance issue is brought to the HOA's attention and they ask for assistance, if the HOA determines it to be an owner issue they will be charged for the invoice on their owner account. We have not had any owner push back on those charges. We are very diligent in our documentation and have not been challenged by any owner.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
LetA
(Nevada)

Posts:1429


10/10/2021 1:16 PM  
Sounds like the uneven floor could have kicked off this turin of events. Regardless, you need to get the opinion of your HOA attorney before you proceed with action.

Raw Sewage, water etc can lead to moisture damage and heath complications like mold and that leads to health complications.

I do not feel is unreasonable to hire a general contractor to assess the situation and fix the problem. That may include resurfacing the said floor in the bathroom and reseating the throne.
It could be the stack pipe is damaged needing replacement. If the stack pipe is damaged, that might be an HOA expense.
I do not see a problem is restoring the floor to new construction condition and billing all the repairs to the owner.
PatJ1
(North Carolina)

Posts:254


10/11/2021 9:44 AM  
UPDATE:

Called the recent plumber's office this morning. Spoke with the person who had just gotten off the phone with the upstairs owner. Owner called them. I called to ask if the plumber could provide additional information to the notations on the invoice regarding the flooring under the toilet. The owner called to complain that their caulking in the shower area wasn't good. The residual leak is from the toilet.

Plumber offered to return and address the situation as a courtesy to the recent invoice during regular business hours, M-F, 8-5. Owner stated that they would only be available on the weekend. Plumber offered morning, lunch time and afternoon times. Owner threatened legal action while on the phone with the plumber.

Owner can threaten all they want. Leak needs to be fixed. Sending all info over to HOA attorney today.

Not the HOA's first issue with this owner for failure to address leaks.

Owner does not comprehend that if you insist on driving the bus, hire your own driver (vendor) to fight your battles. These vendors were invoiced by the HOA. I fully understand why vendor's are reluctant to perform HOA repairs.



Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
KerryL1
(California)

Posts:8620


10/11/2021 10:25 AM  
Sorry, I seem to have lost track of this situation. Aren't owners responsible for their own repairs in their separate interest condos of items that serve them? Aren't owners responsible for their own grout??

OR, are you saying this was the HOA's vendor becaseeu they needed to fix this Owner's leaks??
MelissaP1
(Alabama)

Posts:10534


10/11/2021 10:28 AM  
I am still wondering why the HOA attorney is involved or the HOA's insurance? This is YOU and your insurance issue. Neighbor vs neighbor. After that gets settled then may get the HOA involved in what is determined to be their responsibility. Which may or may not be what you think it is. If it is caulking around the toilet causing the issue, then that doesn't necessarily mean HOA responsible. It's an installation issue. If the pipe was leaking due to corrosion/age then could be HOA issue.

So before you go jumping to the HOA's lawyer, should be jumping to your insurance company. Otherwise your just creating yourself more bills than you really need to. Legal expenses are your choice at this point. Plus if your going to the HOA for their insurance/lawyer then expect them to make you pay their expenses. A HOA's deductible isn't necessarily that low. Ours was 20K deductible just to give a clue. Plus it was ALL the HOA members that had to pay in to cover those expenses. So your using your HOA's resources and your neighbors. I am sure a few of them won't like that.

Former HOA President
CathyA3
(Ohio)

Posts:2475


10/11/2021 11:45 AM  
Posted By KerryL1 on 10/11/2021 10:25 AM
Sorry, I seem to have lost track of this situation. Aren't owners responsible for their own repairs in their separate interest condos of items that serve them? Aren't owners responsible for their own grout??

OR, are you saying this was the HOA's vendor becaseeu they needed to fix this Owner's leaks??



An HOA would get involved because the water and sewage was traveling between units and possibly damaging common elements (for example, framing, subflooring, and plumbing). Even if the upstairs owner was being cooperative, the HOA would have work to do.

The other wrinkle is whether or not insurance is involved. If a COA has all-included insurance, then the association's insurance will cover repairs of parts of the units (the old "turn the box upside down, and if it doesn't fall then the association's insurance covers it" rule of thumb). This will depend whether or not this is considered maintenance vs. an insurable event.

Of course it all depends how the OP's CC&Rs define the unit and the common elements and what kind of insurance they're carrying.
KerryL1
(California)

Posts:8620


10/11/2021 11:55 AM  
My impression, Cathy, was that the HOA needed to step in because the unit Owners will not fix the leaks. It's, then, the HOA's job to repair the problem because it's the HOA's job to protect the common areas and other condos. I've been on the board of our high rise for several years so am pretty savvy about such stuff.

Since the leak or leaks are the r e. sosbility of the Unit owner, their insurance covers the damage to other units. It becomes a conversation between the two ins. companies.

Either way, unless Pat's documents say something else, the HOA can and must gain access to the violating unit, fix the leaks that and bill back the owner.

Melissa, once again, I don't think stacked condo units and their governing documents are in your area of experience.
PatJ1
(North Carolina)

Posts:254


10/11/2021 12:29 PM  
Posted By MelissaP1 on 10/11/2021 10:28 AM
I am still wondering why the HOA attorney is involved or the HOA's insurance? This is YOU and your insurance issue. Neighbor vs neighbor. After that gets settled then may get the HOA involved in what is determined to be their responsibility. Which may or may not be what you think it is. If it is caulking around the toilet causing the issue, then that doesn't necessarily mean HOA responsible. It's an installation issue. If the pipe was leaking due to corrosion/age then could be HOA issue.

So before you go jumping to the HOA's lawyer, should be jumping to your insurance company. Otherwise your just creating yourself more bills than you really need to. Legal expenses are your choice at this point. Plus if your going to the HOA for their insurance/lawyer then expect them to make you pay their expenses. A HOA's deductible isn't necessarily that low. Ours was 20K deductible just to give a clue. Plus it was ALL the HOA members that had to pay in to cover those expenses. So your using your HOA's resources and your neighbors. I am sure a few of them won't like that.




Melissa,

No mention of insurance involvement was made. This IS A neighbor to neighbor issue that the HOA has had to address because of an owners refusal to repair the cause of a leak into a 1st floor unit.

Jumping to any insurance company, does not repair the issue. Insurance comes in to repair the damages after the repair is completed.

Yes, the HOA will pay for our lawyer's guidance. It will be a small price to pay to educate ourselves for handling future issues such as this. This is the 3rd issue I have worked with water invasion to a downstairs unit with an unresponsive upstairs owners. This is the 1st issue I have worked with a combative owner denying any ownership of the problem and refusing to make needed repairs. The HOA can not just sit back and do nothing.

This issue goes a little beyond just fixing a leak. It's been fixed twice. It includes a badly installed floor that is preventing the toilet from being secured to the floor properly causing it to leak.

We are seeking legal guidance to force the upstairs owner to fix their floor.



Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
JohnC46
(South Carolina)

Posts:11539


10/11/2021 12:38 PM  
Pat

I agree with you forcing the issue as the tenant/owner owner seem to not want to get the problem fixed. There might well be structural damage to common area/building between the units which the association is responsible for and should act on. I would go as far as to say the HOA might could gain legally, force able entry to the unit to facilitate the repair. If force able, have a police officer present.
MaxB4


Posts:1395


10/11/2021 1:09 PM  
First, every HOA needs to have a HOA Responsibility Checklist. You should be able to Google to get a copy somewhere. I would then have the PM go through your CCRs and check which items are the responsibility of the HOA and which are the homeowners. Once done, and possibly reviewed by legal, get it amended into your CCRs.

HOA insurance is only going to cover what the CCRs require the Association to maintain, repair and/or replace. A Board could not authorize to include in insurance unless it is already in the CCRs. From experience, the poster's Condo is much difference than a high rise. You will have common element between floors and much of the plumbing lines are shared between multiple unit. I managed a large number of 2 story side by side Condos or Townhomes. Most often the plumbing issue stops at the hookup before it enters a unit. So the toilet leaking is a homeowner issue. If the HOA does get involved, then they will have to pay from their pockets as there won't be insurance to pay for it. The HOA must have a stated policy that in the event the HOA must step in because the owner refuses to cooperate that any expenses incurred will be added to there assessment. If you want to include attorney fees, make sure the policy states that.

Against my advice, my ex-boss, who USED to be an attorney, took on an association that had juts re-written their CCRs making the Association responsible for maintenance inside and out. Their insurance premium was $150K annually with a $25K deductible. If you put too much toilet paper in the toilet and it caused $20K of damage, you would have to cover the HOA deductible before the insurance would kick in.

The HOA must know what they're responsible for and what homeowners are responsible for. AND IN WRITING!
KerryL1
(California)

Posts:8620


10/11/2021 1:46 PM  
It's exactly in our CC&Rs as you suggest, JohnC. fortunately, in 20 years our Assn has never had to break down a condo door to enter to fix a leak that threatens the common area or other condos. Nor have we needed to call to hearing the owner who refused to fix it forcing the Assn. to do the repair. But, per our documents clear cut enforcement clause, we certainly may.

We would get advice from our GC if that were to occur. Meanwhile we've had plenty of leaks caused by Owners and they or their tenants have always been cooperative.

From Max's description, the 2-story condo sounds just like our high rise: The HOA is responsible for plumbing beyond the units' walls. the owners is responsible for their toilet leaks, grout leaks, etc. Our 3-story low rise condo in Charlotte NC had the same obligations splits. It's very clear in our CC&Rs and our current rewrite does (finally) have a Maintenance Matrix Exhibit
JohnC46
(South Carolina)

Posts:11539


10/11/2021 3:00 PM  
Posted By KerryL1 on 10/11/2021 1:46 PM
It's exactly in our CC&Rs as you suggest, JohnC. fortunately, in 20 years our Assn has never had to break down a condo door to enter to fix a leak that threatens the common area or other condos. Nor have we needed to call to hearing the owner who refused to fix it forcing the Assn. to do the repair. But, per our documents clear cut enforcement clause, we certainly may.

We would get advice from our GC if that were to occur. Meanwhile we've had plenty of leaks caused by Owners and they or their tenants have always been cooperative.

From Max's description, the 2-story condo sounds just like our high rise: The HOA is responsible for plumbing beyond the units' walls. the owners is responsible for their toilet leaks, grout leaks, etc. Our 3-story low rise condo in Charlotte NC had the same obligations splits. It's very clear in our CC&Rs and our current rewrite does (finally) have a Maintenance Matrix Exhibit



I hope you never have to break down a door but if needed and allowed, hand me the axe.
PatJ1
(North Carolina)

Posts:254


10/11/2021 3:13 PM  
Posted By JohnC46 on 10/11/2021 3:00 PM
Posted By KerryL1 on 10/11/2021 1:46 PM
It's exactly in our CC&Rs as you suggest, JohnC. fortunately, in 20 years our Assn has never had to break down a condo door to enter to fix a leak that threatens the common area or other condos. Nor have we needed to call to hearing the owner who refused to fix it forcing the Assn. to do the repair. But, per our documents clear cut enforcement clause, we certainly may.

We would get advice from our GC if that were to occur. Meanwhile we've had plenty of leaks caused by Owners and they or their tenants have always been cooperative.

From Max's description, the 2-story condo sounds just like our high rise: The HOA is responsible for plumbing beyond the units' walls. the owners is responsible for their toilet leaks, grout leaks, etc. Our 3-story low rise condo in Charlotte NC had the same obligations splits. It's very clear in our CC&Rs and our current rewrite does (finally) have a Maintenance Matrix Exhibit



I hope you never have to break down a door but if needed and allowed, hand me the axe.




Have had to break down 3 doors. Sink valves busted upstairs and frozen pipes. No one home. Must get the water shut off ASAP to minimized damages.

We call 911 for the Fire Department. They come right away, bust the door, shut the water off, and clean up as much water as they can, and secure the property. It's entertainment for the neighbors.

They leave a report for the owner with their findings of the cause of the leak that the owner can supply their insurance company.

It's not an HOA issue unless it was a community element failure, then we repair the failure, or the damages are over our $10,000 Master Policy deductible. Then the HOA determines to either open an insurance claim or pay out of operating funds.


Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
KerryL1
(California)

Posts:8620


10/11/2021 5:16 PM  
Wow-actual door break downs! Out of 200+ units only about 6 here waived giving the Assn. a key or combo, which is kept in a safe that only can be accessed by our (24/7) security or mgmt. for emergencies.

The 6 who haven't given us a key signed a doc saying they understand that we might have to break down their door in an emergency. It and our CC&Rs also state that if the HOA makes a mistake and breaks down a door in error, the HOA will pay to replace or repair.

We and most high rises around us carry 'bare walls" insurance, which means Owners' insurance pays to fix damage to their units' improvements from an HOA-caused flood UNLESS the HOA was negligent. Our CC&Rs require Owners carry an HOA 6 policy and give the HOA the right to inspect certificates of insurance upon written request.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Toilet Leak - 2nd floor condo



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement