By Ryan Poliakoff
Responsibility for Leaks
I have been reading your column for the last three years and I have found it most informative. As a member of the board in a condo development in Florida, we are constantly in conflict with our residents concerning "who is responsible for the dry wall in a resident's apartment" when there is a leak from "somewhere". The belief is that if the leak is caused by pipes put in by the developer, then the condo is completely responsible (repair of pipes, and the drywall that is damaged during the repairs). However, re-painting of said drywall would be the resident's responsibility.
On the other hand, if the resident's appliance (such as a dishwasher, refrigerator, or washing machine) caused the water damage, then the resident involved is responsible to contact their insurance company and go from there. This has been a constant discussion within the board, as well as with the residents. It seems to be a completely grey area and therefore open for discussion. Can you enlighten me on this issue? Signed, A.G.,
You've brought up one of my favorite legal issues, and it actually is not a particularly grey area at all--it is just one that is widely misunderstood, and where partial truths are regularly misapplied. I have had many property managers restate "rules" that they believe they've learned from other attorneys, or at seminars, but usually they have taken the rules of a prior condominium property and assumed they applied across the board at any condominium. I will say that nearly every single client I have has at one time or another required a legal opinion on this exact issue, and it would not be surprising for that to be the case at every condominium association, as it requires an interpretation of the declaration to give a complete answer. But, the general analysis is always the same.
First, when there is damage to a unit as a result of a leak (or any hazard--but water damage is by far the most frequent scenario) you need to determine if the damage was caused by an insurable event. Usually, an insurable event is quick and severe, like a broken pipe or an overflowing toilet. Slow leaks, that cause damage gradually over time, are generally not considered insurable events. If the damage was caused by an insurable event, the Condo Act controls the responsibilities of the parties. If the damage is not caused by an insurable event, the condominium's governing documents will control. The first part of the analysis really is that simple. If there's a flood caused by a large amount of water released over a short period of time, you generally look to the statute. If a screw has rusted through a pipe and caused a small drip that has caused a water spot on a ceiling, you look to the governing documents.
If it is an insurable event, and pursuant to the Condo Act, the association is responsible to repair and replace all elements that were originally installed by the developer, and all alterations and additions by the association, except for certain items excepted by the statute, which include "all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit."
So, if a pipe breaks and floods a unit, the association repairs the pipe and the drywall, but the unit owner is responsible for the paint (a wall covering) and replacing the cabinets. The rights and responsibilities are expressly delineated in the statute. Note, however, that a negligent unit owner may be responsible to reimburse the association and unit owners for their costs--this is a separate and more complicated analysis that we need to leave for a future column.
If the damage is caused by a non-insurable event, then you need to look to the governing documents, and in particular two sections. First, there will be a provision that defines which areas of the building are common elements, and which areas are part of the units. But, that alone doesn't tell the whole story. There will also be a provision of the declaration that expressly delineates maintenance responsibilities. Sometimes, a unit owner will be responsible to repair and maintain limited common elements that only serve their unit, such as a balcony. Other times, the association will be responsible to maintain a part of the unit, such as an entry door. This is where it is nearly impossible to evaluate responsibilities without enlisting the assistance of the association's attorney, since this analysis requires experience and training in interpreting contracts.
I love evaluating maintenance responsibility issues, because it's a logic puzzle. If A, then B. If C, but not D, then Y. If the damage was caused by an insurable event, you look to the statute. If caused by a non-insurable event, you look to the declaration. If you look to the declaration, you start with the definition of unit/common element boundaries. Once you determine if the damage is to the unit or to a common element, you check the rules regarding maintenance responsibilities. There's a definite pattern that must be followed every time you do the evaluation, and it is generally only the language of the declaration, itself, where grey areas can and do come into play--and where attorneys almost always need to get involved.
Below is a picture from the Board Member Training Seminar that was held this past spring.
We have another planned for the fall, details to follow.