Water and gutters from exterior have damaged my unit

Started by XavierM1 • 13 replies • 1629 views

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XavierM1 (Washington)
Posts: 1

Posted:

I live in a 36 unit 3-story condo in seattle, wa. I am on the third level. The building was built in 1956 and then in 2008 it was renovated into condos. I purchased my unit and moved in in 2014. It is a 1 bedroom 500 square feet all hardwood floor unit. We are managed by a condo management group.

There has been water intrusion going into my unit for quite some time it appears.. It entered through an exterior wall on the back side of our building. My unit is the only one to have this issue going on.

I reported the incident as soon as I saw water on my hardwood floor in my bedroom coming from that exterior wall under the baseboard moulding. After the HOA hired a construction team to investigate they saw that it has been going on for some time and has been entering underneath the hardwood floor over the cement(subflooring). The hardwood floor of my whole unit needs to be replaced.

It turns out the water is entering from my CMU wall due to the roof scuppers being overwhelmed and the gutters have significant bellies that are not allowing the water to flow freely. The gutter anchors have pulled out of the CMU wall causing water to leak through the CMU wall. The roof scuppers, drain lines, and wall vents were poorly installed.

Because the issue is due to poor craftmanship, wear and tear, and maintenance insurance is not going to cover the damage in my unit.

HOA is refusing to help out with any of the repairs as it states in the condo declaration "the association shall not be liable for damage to property caused by the elements or resulting from water which may leak or flow from outside or from any parts of the building except to the extent of any insurance proceeds available"

In my eyes this is clearly their fault due to negligence, poor installation, poor maintenance and inspection of the building and they should be paying for all of the repairs to my unit or at least some of it.

Are they exempt from liability in this situation due to what is stated in the declaration? Or is their still some sort of "public policy" or law that would put them on the hook for this?

I've contacted a few lawyers and they all want to charge me a couple hours of labor to review the declaration but I have already reviewed the declaration and that is the portion that the HOA attorney is using on me.

PitA
Posts: 1,416

Posted:

Two options:

1) Have an attorney craft and send a 'letter of demand' for the faulty work to be corrected in order to stop further leakage. If and when the issue is corrected you then 'eat' the loss of your flooring and enjoy your home.

2) Move (after putting in a cheapo vinyl floor).

DouglasK1 (Florida)
Posts: 2,046

Posted:

Do you have your own insurance? If so, have you filed a claim with them?

Escaped former treasurer and director of a self managed association.

MarkM31 (Washington)
Posts: 494

Posted:

Read more of the CC&Rs. Since the HOA owns the roof and scuppers, they should be responsible. Just because they claim they are not does not make it so.

You also have a potential claim for construction defects against any contractors and the HOA. As Pita advised lawyer up.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By XavierM1 on 03/25/2017 12:40 AM
HOA is refusing to help out with any of the repairs as it states in the condo declaration "the association shall not be liable for damage to property caused by the elements or resulting from water which may leak or flow from outside or from any parts of the building except to the extent of any insurance proceeds available"

I do not see this clause as absolving them of any and all responsibility. To me it says you will have to eat the costs that the HOA's insurance will not cover. You will not know that amount until the HOA files a claim.

If I were in your position, I would start by filing a claim with my own insurance carrier and let them go after the HOA's insurance.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By LarryB13 on 03/25/2017 10:28 AM

I agree.

JeffT2 (Iowa)
Posts: 880

Posted:

My understanding is that the idea that the association is not responsible for leak damage is normal and valid. However, the association is still responsible for damage that results from negligence or a breach of their duty of care, so it sounds like you have a simple case of negligence or not negligence.

I'm assuming that they fixed the problem promptly to prevent subsequent damage.

The association is not responsible for installation or construction defects, unless you can show the association did something wrong. Was this system part of the building before the developers started to sell condo units in 2008?

Inspections and maintenance? The association could argue that your condo is the only one affected, so there was no reasonable expectation of failure or need to inspect this system, and therefore they are not negligent or liable. I don't know if that argument would hold up in court. You would have to show that they knew about the problem or should have known about the problem and did not take reasonable steps to prevent a problem.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By XavierM1
. . . it states in the condo declaration "the association shall not be liable for damage to property caused by the elements or resulting from water which may leak or flow from outside or from any parts of the building except to the extent of any insurance proceeds available" . . . In my eyes this is clearly their fault due to negligence, poor installation, poor maintenance and inspection of the building and they should be paying for all of the repairs to my unit or at least some of it. Are they exempt from liability . .

XavierM1 Wash If you don't want to claim against your own insurer for basic unit & upgrades damage ( and hopefully get lawfully 'outcomed' ), you respectfully need to either hire or acquire the skillsets about rights if any to recover any compensation.

The usual post-damage strategy is to establish if a loss was an insurable loss, if so whose insured loss, & then to cynically try to shift it anywhere else away from the victim's own shoulders.

( Both Washington time-triggered condo laws seem to allow Declarations to exempt the condo corp from insuring basic units under its master corporate policy. BUT you or your lawyer will have to track that down. Jurisdictions like mine legislate condo corporations to insure basic units from insurable loss. But yours doesn't seem to be like that, whether you are under the Condominium Act http://app.leg.wa.gov/RCW/default.aspx?cite=64.34.328
RCW 64.34.328 or under Chapter 64.32 RCW HORIZONTAL PROPERTY REGIMES ACT (CONDOMINIUMS)
http://app.leg.wa.gov/RCW/default.aspx?cite=64.32 ).

Regardless, respectfully, of your own view of what constitutes 'negligence', it is NOT 'negligence' if a building envelope failure occurs without being detectable by prudent inspection or by some other sort of regular cleaning etc that would have disclosed a risk of failure. Insurers as you aware are not maintenance funders but compensators for insurable loss.

Injured parties invariably bear the onus to prove negligence where 'strict liability' is not the standard of their protection and shifting of loss. For easier clarity, first time pinhole pipesplits aren't negligence until they start happening frequently without response. Carelessly neglecting a known serious leak would likely be negligent.

You may unfortunately be stuck in your case with what the Declaration lays on you as to damage. Run it by your own insurer if nothing else, and good luck.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JohnC46 on 03/25/2017 12:42 PM

Posted By LarryB13 on 03/25/2017 10:28 AM

I agree.

Ditto

BobD4 (up north)
Posts: 1,002

Posted:

Posted By XavierM1 HOA is refusing to help out with any of the repairs as it states in the condo declaration "the association shall not be liable for damage to property caused by the elements or resulting from water which may leak or flow from outside or from any parts of the building except to the extent of any insurance proceeds available" . . . In my eyes this is clearly their fault. Are they exempt from liability in this situation due to what is stated in the declaration? Or is their still some sort of "public policy" or law that would put them on the hook for this? . . ."

XavierM1WASH : Let me revise what I wrote above, which I recommended you work out with your own insurer.

1- If your condo complex was registered before July 1/90 it looks like your Declaration or management choice of insurance coverage may 'as of right' deprive you of otherwise recoverable loss under a master insurance policy. Chapter 64.32 RCW HORIZONTAL PROPERTY REGIMES ACT (CONDOMINIUMS)
http://app.leg.wa.gov/RCW/default.aspx?cite=64.32

However if your condo complex was registered after July 1/90 then it is required to try to include unit coverage by a master insurance policy policy under RCW 64.34.352 http://app.leg.wa.gov/RCW/default.aspx?cite=64.34.352 . That different chapter cites master policy insurance on the "condominium" as specifically defined to include units. Unfortunately the coverage is undetailed, so whatever is ccntained may - as you say - let the master insurer avoid a payout.

2- That may still leave you your own unit insurance to claim under if you bought such coverage. It may not bar you from making a conventional civil claim if you can meet the hurdles eg against the condo corporation or under a builder warranty etc

3 - A downside is that if you are unable to pull insurance loss compensation from somebody, the separate issue of repair after damage - as opposed to the availability of insurance funds - makes every unit owner responsible for repairing their own damaged unit( RCW 64.34.328 http://app.leg.wa.gov/RCW/default.aspx?cite=64.34.328

Upkeep of condominium.
(1) Except to the extent provided by the declaration, subsection (2) of this section, or RCW 64.34.352(7), the association is responsible for maintenance, repair, and replacement of the common elements, including the limited common elements,
and each unit owner is responsible for maintenance, repair, and replacement of the owner's unit.

Good luck with pursuing this through your insurer or getting an honest answer. Some condo corporations misuse the unit repair default to try to escape loss claims they should be making under the master policy, lest deductibles be generally expensed & premiums rise.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Bob,

My interpretation of what Xavier posted was not that the insurance carrier was refusing coverage but, rather, that the condo board was refusing to file a claim in the mistaken belief that they are not liable under any circumstance. The insurance carrier may be unaware of the claim due to inaction by the condo board. This is why I suggested that Xavier file a claim with his own insurance: his insurance carrier will file a claim directly with the condo insurance carrier whether the board wishes to do so or not.

Can someone clarify whether the insurer has denied the claim?

JeffT2 (Iowa)
Posts: 880

Posted:

Insurance for property damage covers damage from sudden or accidental events, which this is not. The OP says:

“There has been water intrusion going into my unit for quite some time it appears.... they saw that it has been going on for some time...Because the issue is due to poor craftmanship, wear and tear, and maintenance...insurance is not going to cover the damage in my unit”

If there was a sudden flood, then insurance would pay, but apparently not for water getting in over time due to the above issues and time frame.

On the other hand, it is possible that the association's liability coverage will pay if the association was negligent.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

. . . Can someone clarify whether the insurer has denied the claim ?

LarryB13

1- I agree this is exactly what Xavier M1 WA should clarify. Besides his management, were there denials from the corporation insurer to management ? And/or to XavierM1 from his own unit insurer ?

IF he is subject to RCW 64.34.352 - is he ? - unit repair is laid on him by the state.

But a free-standing duty is also laid on condo management by that statute to insure "the condominium", a duty which by its definition includes his unit. It's a management duty to maintain "to the extent reasonably available: (a) Property insurance on the condominium..."

It would respectfully be risky not to get one's own unit insurance, given the quoted wording from the Declaration and would beat the 'contribution' rule.

So XavierM1 : What about your own unit insurance ?

2 Re-reading XavierM1's post I wonder if his real question is this :

Would a court shield a condo corporation from civil liability for negligence beyond what it choses to seek & recover from its own master insurer ?

This question could be de-constructed as : Can ( alleged) negligent liability hide behind a Declaration covenanted by a victim of such alleged negligence ?

Or would such fail a 'reasonability' yardstick test or run afoul of Washington condo law or civil liability law ?

This is a question not merely for a lawyer but maybe for a judge in that jurisdiction.

It's tough & of dubious public interest, to force any allegedly consenting victim to suck up GROSS negligence. But maybe this ain't gross negligence, much less negligence at all. "We're only liable to the extent of the coverage we bought & claimed successfully; maybe we didn't even claim. Tough luck "

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By JeffT2 on 03/26/2017 9:46 PM
. . . If there was a sudden flood, then insurance would pay, but apparently not for water getting in over time due to the above issues and time frame. On the other hand, it is possible that the association's liability coverage will pay if the association was negligent.

JeffT2 Iowa I agree. Maybe it's not even negligence, even if the discovery was a 'sudden event'.

1 - The issue might have been irrelevant if Xavier M1 had his own unit insurance to backstop his statutory duty to repair his own unit. Advisable given loose/discretionary insurance help at best from the condo corporation.

( Some condo corporations here have refused to make master claims without coerced false confessions of blameworthiness used to download the deductible onto the victim unit owner. )

2 - Maybe Mark or somebody from Washington knows if post conversion condo corporations have any way to action warranty claims against the Declarant & even against the Declarant's contractors ?

( In 1995 a builder lacking any contractual privity with a condo corporation created by conversion 12 or 15 years later, was actually held civilly liable for grossly unsafe building cladding in a nearby jurisdiction. More shocking that the builder was not long gone . . ) That may not be be big part of XavierM1's problem of course.

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