Slab Leaks at HOA Guidelines? HELP

Started by MichaelB32 • 20 replies • 6474 views

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MichaelB32 (California)
Posts: 141

Posted:

Every since I got involved with our HOA, there has always been this problem with the occurrence of slab leaks on bottom floor units. Since all the condo water pipes are on a shared system (Association dues pay for water), the HOA becomes responsible when these system leak or break. Our Condos were built in 1980.

Our HOA believes that they are only responsible to return the unit to it “as built” condition. This of course does not make a property owner happy. Many homeowner have replaced the original carpets with expense laminate or tiles. In many cases this means the whole floor will need to be replaced if the materials cannot be match. Furniture, cabinet, sinks all can become victims of a slab leak. Our HOA has no guidance for who is responsible for what. They make decision on a case by case bases which can be arbitrary and conspicuous. Because our HOA insurance is becoming too expense, the HOA does not file the a request with the HOA insurance company and chooses to act “self insured”. This does impact our budget. Some owners do not carry any homeowners insurance. All this combines creates legal threat and small claims actions every time we have a slab leak.

Do any of you know what the real legal responsibility is for the HOA? Not something that just sounds nice. Do any of your HOA have published guidelines to identify who is responsibilities for what? Does this hold up in court? There is a proposal to require that all homeowners carry home owners insurance. Can we do that? Is that legal? Any advice to write comprehensive guidelines would be appreciated. Thanks in advance.

Michael Barto
[email protected]

RichardP13 (California)
Posts: 3,868

Posted:

Michael

The person(s) you should be talking with is the insurance companies that insure HOA's. IT IS the responsibility of the homeowner to carry qualified insurance for what the HOA master insurance policy does not, and to not do so is being foolhearted.

To try and make the HOA pay for something you didn't care to insure is doing so at their own peril.

SheliaH (Indiana)
Posts: 6,964

Posted:

In addition to getting an attorney, you may want to reread your documents - there may be something about who owns what, but it's buried. Unfortunately, CCRs (where this stuff is usually addressed) aren't always written in plain English, which is why a HOA should take a close look when the community is turned over to the homeowners and update it to delete references to the developer and whatever other updates are needed.

That's probably why you have the "as built" language written in the CCRs, and personally, I think that's a good idea because the HOA can't always control what's going on in the house (e.g. replacing carpet with laminate flooring). Those homeowners should have asked what was and wasn't covered before replacing the carpet, especially given the problems you've had with slab leaks. And owning a home without having homeowner's insurance is just plain dumb - these are HOMES, not apartments (even there, you need renter's insurance). If you want the HOA to cover EVERYTHING, your fees will go up accordingly, and would likely be so expensive no one could afford to live there (that'll really help your property values!)

There are some HOAs that do require homeowners to carry insurance or provide some sort of document saying they're self insured. Companies who insure HOAs usually have language in the policy stating it won't be responsible for anything from the drywall in (you may want to read the master insurance policy)

Frankly, I'm amazed this hasn't come up before now - your community is 30 years old (what have the homeowners and board been doing all this time???) Oh, well, you can only move forward from this point, so I would suggest you start by having the association attorney give your documents a good read and consult your master insurance company for help on coming up with a policy. Perhaps you should also have a plumber take a good look at these water pipes to see if there are any building defects that went unnoticed (which will create another set of problems if the developer is no more).

Finally, do you guys have any type of reserve study - I'm betting you don't, so you need to get one posthaste so you can start budgeting for replacement of this and other items covered by the HOA.

Sorry the news isn't better and yes, this may get worse and cost more money before it gets better.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SheliaH on 09/06/2016 4:57 AM
That's probably why you have the "as built" language written in the CCRs,

1.
MichaelB32, can you please confirm or deny that this "as built" language is in the CCRs?

If the CCRs do state that the HOA need only return the condo to the "as built" condition, then based on Franklin v. Marie Antointette Condominium Owners Assn.
(1993) 19 Cal.App.4th 824**, I agree the HOA is on firm ground in refusing to do more than return the condos to their original "as built" condition. All owners agreed on this clause when they bought in.
Here's the opinion from Franklin: http://www.davis-stirling.com/CaseLaw/FranklinvMarieAntoinette/tabid/828/Default.aspx

If there is no such language in the CCRs, then from my study of these situations, I tend to think that the HOA must restore the condo to the condition that the owner placed it in. Same idea as if one neighbor's kids in a community of stand-alone houses, with no HOA, put a hose through a cracked-open window of another neighbor's house and flooded the house. The first neighbor would likely be liable for all damage done to the second neighbor's house. Though insurance may kick in on one or both sides for the latter.

2.
Regarding the arbitrary and capricious decision-making by which owners get X amount of repairs paid for by the HOA, yes, this is a problem. It holds the HOA out to being liable when the HOA covers one owner's application for reimbursement for repairs while denying another owner's substantially equivalent application (or part thereof).

3.
This discussion of the California Davis-Stirling Act suggests that, if a condo association's CCRs do not have an insurance requirement for individual units, then it should try to amend its CCRs to institute one: http://www.davis-stirling.com/MainIndex/Owner-RenterInsurance/tabid/1679/Default.aspx . So first, MichaelB32, do your CCRs presently require individual owners to have home insurance?

4.
I do not want to say anything about guidelines until MichaelB32 answers 1. above.

**I pulled this from Restatement (Third) of Property (Servitudes) Section 6.13. The latter is an overview of the law nationwide for HOAs regarding duties of ordinary care in managing the property (including management so as not to damage others' condos) and duties to treat members fairly. If you want a pdf file of Section 6.13, email me at augustin1919@gmail .

RichardP13 (California)
Posts: 3,868

Posted:

The HOA or the Association did not build the complex and/or the individual unit.

The HOA nor its Members have any interest in one person's individual unit, only the a equal interest in the common area.

The HOA nor any of their Members profit when an individual's unit is sold.

An Association's Master Insurance policy is written from the responsibilities set forth from the CCRs.

A homeowner is responsible for obtaining their own HO-6 policy when there is a Master Policy in place. Some newer CCRs now require proof that each homeowner purchases such insurance.

The Association has a responsibility for the maintenance of common area items that may directly effect an individual's unit. The Association's insurance will cover repair once damage has been spotted. BUT, if there is damage, why should other homeowners pay for the upgrades one homeowner made to their unit for THEIR own enjoyment. Those upgrades may lend additional value to one's property of which none of the others Members will never share in.

IF, as a homeowner, you should choose to upgrade your resident to the "Persian Palace" the question you should have asked is, in the event of a disaster, am I covered to bring it back to this state.

Unfortunately, I have seen where Boards have caved and, IMO, done the wrong thing. Couple years ago a condo suffered a water leak that damaged a handful of units. Two of the unit had NO personal insurance, yet had done upgrades to their unit. The insurance paid to bring the unit back the original state absent upgrades. The owners were furious. The Board and PM craved in to the owners who didn't have insurance.

I have send fraud where a Board president that had a water leak caused by a faulty water heater, which was clearly written as homeowner responsibility, file a claim with the HOA's master policy for $100K and then pocketed the money.

As far as court cases, I think you will find a couple in this area that will side with a homeowner for repairs, but not for the upgrades they made have made.

RichardP13 (California)
Posts: 3,868

Posted:

Michael

Per your CCRs

Section 9.03. Rights and Duties of Unit Owner to Insure. It shall be the responsibility of each unit owner to provide Insurance on his personal property and upon all other property and improvements within his Unit.

RichardP13 (California)
Posts: 3,868

Posted:

Michael

I read the write-up you had about the incident on your website. The comments below are from what I understand from your website.

Here is what should have happened, or at least what I would have done.

First, as this was inadvertently caused by the HOA plumber in the repair and maintenance of their common area responsibilities, I would have insured the leak was fixed first. Then, I would have spoken directly to the homeowner to have them place a claim with their insurance. Their agent would then contact the HOA agent and a settlement would be reached based on what the insurance has agreed to insure. Additional upgrades would be the responsibility of the homeowner.

Here is the problem, IMO. The Board screwed up. Everything that was written about should have been paid through the insurance company, IF THEY WERE EVER USED. That might be the problem. The insurance company's responsibility per their policy would be to repair and replace to the original sales condition of 1980. If the homeowner upgraded extensively then they are on the hook for the different, either through their own insurance or out of pocket. If the upgrade is minor the insurance may, at their discretion include in their settlement.

Technically, the homeowner was in violation of section 9.03 of your CCRs. They were required to carry their own insurance.

Since your governing documents are clear on the fact homeowners shall carry their own insurance, how do you enforce that provision. First, you need guidance from legal counsel. Then you need a policy that requires homeowners to submit proof of coverage. Then you need your management company to track such insurance and its expiration dates. Your management company should have that type of software, I do.

Mortgage companies require proof of insurance on the unit they loan on. In the case of a PUD, the homeowner will have fire insurance for their property, which would also include personally property and such. Generally, this is impounded, as well as property taxes. An attached complex will have a master policy and each unit owner should have a HO-6 policy. Some mortgage companies require on annual basis, proof of BOTH policy's. I handle the association's, the homeowner handle the HO-6 policy.

Why shouldn't the HOA not be required to request compliance from their Member. There is substantial risk involved. If a homeowner lapses on their insurance for either home or auto, the insurance will "force" insurance on them, at a substantial premium.

I haven't seen a court case on this, but I would love to argue the case on its merits.

MichaelB32 (California)
Posts: 141

Posted:

There is nothing in our CC&R's states "as built", but Richard pointed out the requirement for Insurance. I agree with Richard's and Augustine points. The cases mentioned are scary. What I need though is what kind of Guidelines the Architectural Committee we should write and publish for homeowners for slab leaks.

* Our Slab Leak Guidelines need to set up some type of enforcement for a Homeowners to carry insurance
* We need a policy when a homeowner does not have insurance which is a "breach of contract" of the HOA CC&R's. How does the HOA handle this?
* The policy should state where the HOA will only pay for return to "as built" conditions.
* We need to put something together where the homeowner has upgrades and how that should be negotiated in the repair cost. For example a cast iron sink was replaced by a stainless steel sink which is actually a downgrade by the homeowner.
* Our Association elects not to use its insurance. But an insurance agency has negotiator and policies who know how to property do this stuff. Our Management does not seem to have any of this. They need guidelines, procedures and processes. What should they be?

Richard's point is clear: The HOA should not pay for upgrades. Richard refers to another issue with an owner from our web Newsletter, where the plumber actually broke his kitchen. That is another issue. for another discussion. I just want to get some guidelines together for the Architectural Committee at thi point.

Michael Barto
[email protected]

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By AugustinD on 09/06/2016 7:38 AM

If there is no such language in the CCRs, then from my study of these situations, I tend to think that the HOA must restore the condo to the condition that the owner placed it in. Same idea as if one neighbor's kids in a community of stand-alone houses, with no HOA, put a hose through a cracked-open window of another neighbor's house and flooded the house. The first neighbor would likely be liable for all damage done to the second neighbor's house. Though insurance may kick in on one or both sides for the latter.

I disagree. Can't compare a deliberate act with a pipe breaking by accident. This is from davis-stirling com.

"Many homeowners mistakenly believe that their associations are strictly liable for any damage or loss they may suffer even if the HOA was not the cause of the loss. For example, a plumbing leak damages an owner's unit does not automatically make the association liable for the damage. The standard for HOA liability is negligence (unless the governing documents establish a different standard). Accordingly, the HOA must have had a duty to maintain the particular plumbing line, the HOA breached that duty (the board knew or should have known that the line needed repair and failed to take action to repair it), and the HOA's breach of its duty caused a loss to the owner. Under those conditions, the association may be liable to the owner for the loss he/she suffered."

MichaelB32 (California)
Posts: 141

Posted:

To JeffT2

Could you send me the link where you got this. You can either post the replay or my email is [email protected]

Michael Barto
[email protected]

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By MichaelB32 on 09/06/2016 12:00 PM
To JeffT2

Could you send me the link where you got this. You can either post the replay or my email is [email protected]

http://www.davis-stirling.com/MainIndex/NegligenceDefined/tabid/600/Default.aspx

SheliaH (Indiana)
Posts: 6,964

Posted:

I'm a little intrigued that the Board didn't always file a claim with the master policy - is that because the damage was under the deductible cost so it went ahead and paid it? I understand not wanting to file a claim because the premium will skyrocket, but I'm also wondering if your association has had so many of them that one more will get you dropped and you'd have to pay a lot more for a new policy. Has anyone asked your board about this? If so, what was the response?

Writing a policy for the slabs is nice, but somehow I think you might be better off with a policy that addresses the entire HOA vs homeowner's responsibility regarding repairs. Some of the things Richard mentioned would be a great start, such as all homeowners being required to carry homeowner's insurance, regardless of whether the home has a mortgage or not. That's what we have in our community rules - years ago, someone in our association noted that once the house is paid off, there're really nothing that compels a homeowner to carry insurance, although it makes a lot of sense.

Your property manager might also want to see if other clients who are similar to your community might want to share some of their policies for ideas or you can talk to their boards directly. You'll definitely need to specify in your CCRs exactly what the association is responsible for - if that's not in your documents, it should be and you'll likely need homeowner approval to upgrade the documents.

If people insist on the HOA paying for upgrades that I would suggest that the HOA be the ones to approve any said upgrade to control costs and ensure the work is of good qualities. As you might guess, that will cause all types of controversy, but remember, every dime the HOA gets for whatever is covered comes from - homeowners. Are you and your fellow homeowners willing to pay the cost to be the boss, so to speak?

By the way Richard, since you mentioned your company has software that checks if the property has homeowner insurance, does it do anything special if someone's renting out his/her unit? I would think those folks ought to have a landlord's policy because a garden variety homeowner's policy may not pay anything if the owner wasn't living in the house.

Back to you Michael, if anyone is renting out his/her unit, you may want to add something to the CCRs requiring that the homeowner ensure the tenant has renter's insurance. I don't know if you'd be able to hold the homeowner responsible for all damages if he/she fails to do this, so you might want to ask your attorney about that. And your master insurance carrier.

Here are a few items from our community's master policy and Board resolutions you may or may want to adapt or ignore, although we are a townhouse community, and so coverage of the common area is different from what might be in a high rise condo:

if homeowners (or their tenants/visitors/guests, etc.) are found to be responsible for damages to the common area or something originating in their unit (we're a townhouse community) causes damage to the adjoining area, they will be responsible for repairs (at the very least, they have to cover the association's deductible, which is currently $5K)

homeowners must notify the property manager if there is damage to their unit (e.g. roofing) that the association is responsible for. we have an on-call manager for emergencies. the association has to inspect the damage first to verify (1) it is the association's responsibility and (2) there was no neglect/abuse by the homeowner that caused the damage. the homeowner may choose to go through his/her own homeowner's insurance so both companies can hash this out.

any and all installations by the homeowner (whether an upgrade or downgrade) are not covered. the property will only be restored to its original condition - homeowners must pay the different for any improvements.

our master policy also states the homeowner is responsible for everything from the drywall in, regardless of what caused the damage, which includes, but isn't limited to flooring, utility lines (from the point they enter the unit), plumbing and electrical fixtures, paint, appliances, heating/cooling systems and of course personal property

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By MichaelB32 on 09/06/2016 11:04 AM
There is nothing in our CC&R's states "as built", but Richard pointed out the requirement for Insurance. I agree with Richard's and Augustine points. The cases mentioned are scary. What I need though is what kind of Guidelines the Architectural Committee we should write and publish for homeowners for slab leaks.

* Our Slab Leak Guidelines need to set up some type of enforcement for a Homeowners to carry insurance
* We need a policy when a homeowner does not have insurance which is a "breach of contract" of the HOA CC&R's. How does the HOA handle this?
* The policy should state where the HOA will only pay for return to "as built" conditions.
* We need to put something together where the homeowner has upgrades and how that should be negotiated in the repair cost. For example a cast iron sink was replaced by a stainless steel sink which is actually a downgrade by the homeowner.
* Our Association elects not to use its insurance. But an insurance agency has negotiator and policies who know how to property do this stuff. Our Management does not seem to have any of this. They need guidelines, procedures and processes. What should they be?

Richard's point is clear: The HOA should not pay for upgrades. Richard refers to another issue with an owner from our web Newsletter, where the plumber actually broke his kitchen. That is another issue. for another discussion. I just want to get some guidelines together for the Architectural Committee at thi point.

Michael

First, this is not an Architectural issue, this is a governance issue and because the CCRs clearly state that owners shall carry personal insurance, this needs to be included in the Rules and Regulations.

I believe either the association's legal counsel or maybe the insurance's legal counsel should draft the language since it is the insurance company that is setting the rules (after a thorough review of your CCRs).

Your legal counsel should be working with your PM drafting language to enforce Section 9.03 and how to best monitor compliance. Legal counsel will have to look at court cases to discover if the association can force insurance for non-compliance. I am checking with our insurance agent to see if this can be done.

For the Board not to be using the association's insurance, is, IMO, a breach of their fiduciary duties and can put their association in serious jeopardy. I hope they are not getting poor advice from their PM.

In regards to the sink, the replacement should have been for a stainless sink, UNLESS the homeowner wanted to pay the additional cost for the upgrade. You CANNOT be everything to everyone. You have to be firm, fair and consistent to all.

The Association had no responsibility in the building of the complex BUT is tasked with its maintenance. Slab leaks are not something you plan for or can avoid. It is how you handle them that sets you apart from others.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

My opinion is you can't protect everyone for everything. I think your HOA may be getting "guilted" a bit into covering some of these situations. Which is why your HOA may be taking the each situation differently. No two situations are going to be alike in such conditions. I can see why each one was handled differently each time. Conditions and causes change.

I would talk to the HOA insurance and even your own homeowner's insurance. Find out the lines of responsibility. It may be the HOA is taking on more than it's supposed to. Especially when it comes to those with no homeowner's insurance. Which quite frankly it's NOT the HOA's responsibility to protect or anyone else. Sorry but if you don't carry homeowner's or rental insurance it's "too bad so sad". Stop listening to their empty threats of lawsuits and pushing responsibilities on the HOA. It's their own fault, it's their fault. Unless the damage was caused by the HOA.

In our city the rule is the water department is responsible for ALL leaks that go TO the water meter. If the leak is between the meter and home, then it's the homeowner's responsibility. Another line to discuss with your own water authority where they cut it off.

We had several water leak issues that nearly broke our HOA. So I understand what your going through on that. We finally had to go to separate water meters to stop the bleeding of our funds for paying for all the leaks that we had. Previously we had 1 water meter for ALL the homes. Which did make the HOA responsible for water use/leaks.

Another note: Your HOA sounds like the original contractor installed the water supplies under the slabs improperly. You may suggest those with issues replace with PEX water lines than PVC. Plus need to check the depth they were originally buried. The fault for these leaks go back further than the HOA but to the original contractor. Which means your HOA inherited this issue when it took over. If it's a rampant issue, your HOA may need to look into a replacement program to fix the issue.

Former HOA President

RichardP13 (California)
Posts: 3,868

Posted:

Sheila

By the way Richard, since you mentioned your company has software that checks if the property has homeowner insurance, does it do anything special if someone's renting out his/her unit? I would think those folks ought to have a landlord's policy because a garden variety homeowner's policy may not pay anything if the owner wasn't living in the house.

My software is homeowner association specific, but does track a number of rental issues. It will track mortgage company and individual homeowner policies. I also have a way to track if the servicer of a loan has changed, which happens often.

As far as landlord policy, they would carry either an HO-3 or HO-6 policy with special clauses for personal property that would be included in the HO-4 Renters policy. The owners policy will carry the improvements they may want to insure. The renters policy will carry for theft, or any part of the unit that for reason, you may own.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JeffT2 on 09/06/2016 11:24 AM

Posted By AugustinD on 09/06/2016 7:38 AM

JeffT2, thank you for this. I see from MichaelB's HOA's web site that the HOA at some point "re-routed half the building's plumbing pipes on the bottom floor units to prevent future slab leaks and removed several over grown trees in the complex." Did this re-routing firm up the existence of a duty the HOA owed the members? The HOA knew it was likely these pipes would fail and flood the units?

Perhaps more importantly, and in the vein of what MelissaP wrote, I want to know where the line is drawn for the unit's insurance and the HOA's insurance. This may solve the issue of whether upgrades are going to be covered.

MichaelB, is this polybutylene piping that is failing? My former HOA (not a condo; stand-alone homes) is afflicted with this, with the spontaneous pipe burstings and massive damage that go with them.

I agree with Richard that this is not an architectural issue. Pursuant to what Richard posted from the CCRs, the HOA should impose requirements on what kind of insurance each unit owner must have. How to enforce this? Consider: Anyone not providing an active certificate of insurance will have his or her voting rights suspended (with proper notice), and a specific fine will be imposed.

MichaelB32 (California)
Posts: 141

Posted:

To

The HOA does not want to file an insurance claim because of too many slab leaks and they do no what their insurance to go up or be cancelled. They have stated that.

Michael Barto
[email protected]

RichardP13 (California)
Posts: 3,868

Posted:

Michael

I had a conversation with my agent.

In the situation you described, the proper procedure would be for the homeowner agent to start the paperwork and then connect with the HOA agent.

He mentioned there are some Master Policies that will include homeowner improvements but they are few and far between. 99% of the policies written will place the individual units with the homeowner, not the HOA.

You need a Homeowner Responsibility List and have that recorded and if done also include insurance responsibility clearly defined and recorded. This would have to be amended by the Owners. In light of what you have said, this would be a wise investment.

You need to first devise a plan to monitor HO-6 policies and then figure out enforcement. Voting right and fines would be an option, but that would then need to be amended and voted on by Owners. It would be fiscally prudent to do so.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By MichaelB32 on 09/06/2016 2:34 PM
To

The HOA does not want to file an insurance claim because of too many slab leaks and they do no what their insurance to go up or be cancelled. They have stated that.

I would disagree, but then I am not on your Board. That is what insurance is for. If cancelled, then a special, extraordinary assessment would be needed to build a war chest to deal with the leaks or you will be broke.

AugustinD
Posts: 5,144

Posted:

Quote:

Are these defective pipes disclosed to potential buyers, either via the seller's disclosure or the HOA's disclosure?

RichardP13 (California)
Posts: 3,868

Posted:

Below is from Fannie Mae's Selling Guide, which lenders and loan originators must abide by if trying to obtain loans guaranteed through Fannie Mae.

B7-3-04: Property Insurance Coverage for Units in Project Developments (06/28/2016)

Condo Requirements — The lender must review the entire condo project insurance policy to ensure the HOA maintains a master or blanket type of insurance policy, with premiums being paid as a common expense. The insurance requirements vary based on the type of HOA master or blanket insurance policy as follows:

“Single Entity” policy: The policy must cover all of the general and limited common elements that are normally included in coverage. These include fixtures, building service equipment, and common personal property and supplies belonging to the HOA. The policy also must cover fixtures, equipment, and replacement of improvements and betterments that have been made inside the individual unit being financed. The amount of coverage must be sufficient to restore the condo unit to its condition prior to a loss claim event. If the unit interior improvements are not included under the terms of this policy type, the borrower is required to have an HO-6 policy with coverage, as determined by the insurer, which is sufficient to repair the condo unit to its condition prior to a loss claim event.

“All-In” (sometimes known as an “all-inclusive”) policy: The policy must cover all of the general and limited common elements that are normally included in coverage. These include fixtures, building service equipment, and common personal property and supplies belonging to the HOA. The policy also must cover fixtures, equipment, and replacement of improvements and betterments that have been made inside the individual unit being financed. If the unit interior improvements are not included under the terms of this policy type, the borrower is required to have an HO-6 policy with coverage, as determined by the insurer, which is sufficient to repair the condo unit to its condition prior to a loss claim event.

“Bare Walls” policy: This policy typically provides no coverage for the unit interior, which includes fixtures, equipment, and replacement of interior improvements and betterments. As a result, the borrower must obtain an individual HO-6 policy that provides coverage sufficient to repair the condo unit to its condition prior to a loss claim event, as determined by the insurer.

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