HOA Common Retention Wall Saturation

AndrewB13 (California)
Posts: 4

Posted:

We are first time homeowners and purchased a condo about two weeks ago now. We have not moved in yet but had our home re piped with copper piping. Upon re piping of the downstairs full bath (3 story condo) mold was discovered in the ceiling and walls. We proceeded to find where the leak was coming from as the whole bathroom was compromised and needed to be demolished. Our HOA sent out their plumber and we hired a professional leak detector as well. The problem was found to be water saturation of the Common Area retention wall due to a planter box above the wall where an irrigation pipe has burst. The HOA has acknowledged the issue and will take care of the removal of planter box, tree, and repair of retention wall. The bathroom was completely destroyed and will need mold remediation and structural restoration. Of course upon meeting with the HOA and discussing they immediately covered their bases by stating "all repairs in your unit are your responsibility" and they will have to review the CCR's with their attorney.

I reviewed the CCR's with my realtor last night and we found that the HOA is in fact liable if and only WHEN a common area component causes damage such as irrigation piping saturating a common area retention wall to any unit due to lack of maintenance and negligence. How do you suggest we proceed?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Andrew

Typically one would file a claim on their own insurance then let your insurance company duke it out with the HOA and their insurance carrier.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By AndrewB13 on 05/18/2017 7:38 AM

I reviewed the CCR's with my realtor last night and we found that the HOA is in fact liable if and only WHEN a common area component causes damage such as irrigation piping saturating a common area retention wall to any unit due to lack of maintenance and negligence. How do you suggest we proceed?

You could send a demand letter citing the relevant CCR passage. Sometimes having an attorney send the demand letter will get more attention, but no guarantee. Worst case you might need to sue the association to force them to follow the CCRs, so talking to an attorney now wouldn't be a bad idea.

Escaped former treasurer and director of a self managed association.

JeffT2 (Iowa)
Posts: 880

Posted:

I agree with John. Making a claim is usually the easiest way to sort out this type of situation.

This may not be an insurable event if the damage occurred over a long period of time. Insurance usually covers sudden and accidental damage.

Does your insurance cover or exclude mold?

Did the previous owner know about it and fail to disclose the problem?

Did the previous owner know about it and fail to inform the association?

Exterior walls are often common area, as specified in your CCRs. There should be a definition of a unit and a statement that anything outside your unit is common area. Is any of the damage in an exterior wall that is a common area wall? If so, the association has to remediate the common area wall.

Did the association know about the problem with the irrigation and/or planter and fail to fix it? If so they may be negligent and responsible for damage.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JohnC46 on 05/18/2017 8:13 AM
Andrew

Typically one would file a claim on their own insurance then let your insurance company duke it out with the HOA and their insurance carrier.

Agree ... let the insurance companies fight it out. That is why you buy insurance and your insurance will want the other to pay for items they are responsible for fixing. You can provide your insurance company with the information from your governing documents.

AndrewB13 (California)
Posts: 4

Posted:

Thank you for all your responses.

A little update:
The HOA sent out a plumber to find the leak and found a sprinkler pipe burst in the large planter box. Once the sprinklers come on the box fills with water quickly thus saturating the retaining wall. The HOA has admit fault for negligence of the HOA maintained component. They have a mold remediation company that has already started work on the bathroom, shared wall in bedroom, and carpet. At this point I followed all your advice and got my insurance involved to duke it out. The HOA has filed an insurance claim of their own but I am still unsure as if their insurance policy will cover the "in-walls" damage to our bathroom. I asked them just now for their HOA Insurance Master Policy to review.

One thing for sure is its clear as day in the HOA docs:
Section 6.9 and 6.10 go into detail stating
"The HOA shall not be liable for any in unit damages UNLESS the damages are caused by an HOA maintained component" such as the irrigation pipe.

What are your thoughts? It's a difficult time for us as this stole the momentous feeling of purchasing our first home. We wont have a place to live while the mold remediation is taking place as we terminated our lease at our apartment come next weekend. I have asked if the HOA's insurance will provide temporary housing and storage for our belongings with no help.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Ask your insurance company regarding temporary housing and storage. Possibly they may either initially pay themselves and receive reminbursement from the HOA insurance OR they will contact the HOA insurance and get you properly taken care of in the meantime. As we noted in this type situation your best bet is deal with your insurance company. Items not covered by HOA should then be covered by your own insurance.

Chin up as these things sometimes happen unexpectedly ... just think at least you will be moving into something fixed up a bit more and paid for by insurances

. Also, at least it happened before you moved in and did not ruin any of your personal furniture and other items if it had become worse in the future. At least the issue has been found and is being fixed.

AndrewB13 (California)
Posts: 4

Posted:

Quote:

Posted By JanetB2 on 05/28/2017 9:17 AM
Ask your insurance company regarding temporary housing and storage. Possibly they may either initially pay themselves and receive reminbursement from the HOA insurance OR they will contact the HOA insurance and get you properly taken care of in the meantime. As we noted in this type situation your best bet is deal with your insurance company. Items not covered by HOA should then be covered by your own insurance.

Chin up as these things sometimes happen unexpectedly ... just think at least you will be moving into something fixed up a bit more and paid for by insurances

. Also, at least it happened before you moved in and did not ruin any of your personal furniture and other items if it had become worse in the future. At least the issue has been found and is being fixed.

Thank you for the reassurance. The HOA's insurance came out a couple days ago and inspected the damages. My fiance overheard them saying they do not think they'll cover any of it. Not even the insulation and drywall. My next question is, if the HOA docs state they are liable for all damages due to a common ground component failure and now their insurance isnt covering it, don't you think the HOA docs supersede their insurance master policy and they are still liable for the repairs? The mold remediation was complete and tested negative for spores. They pulled the carpet and quite a bit of drywall in the joining bedroom. They are going to excavate the planter box and fill with concrete. They will also be injecting the retaining wall with a form of insulation to seal it. In the meantime our insurance company already cut us a check for what they estimate is the cost of damages and repairs. We had our trusted contractor come out to give an estimate. The estimate was way more, almost double the amount our insurance company paid us. What do you guys think thus far?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Insurance 9 times out of 10 always reject the first claim. It's a way to weed out the false from the real claims. I wouldn't stop pursuing but maybe take it up with my insurance company to duke it out with theirs. Which eventually will be what this comes out to. An insurance battle....

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AndrewB13 on 06/08/2017 8:16 AM

Posted By JanetB2 on 05/28/2017 9:17 AM
Ask your insurance company regarding temporary housing and storage. Possibly they may either initially pay themselves and receive reminbursement from the HOA insurance OR they will contact the HOA insurance and get you properly taken care of in the meantime. As we noted in this type situation your best bet is deal with your insurance company. Items not covered by HOA should then be covered by your own insurance.

Chin up as these things sometimes happen unexpectedly ... just think at least you will be moving into something fixed up a bit more and paid for by insurances

. Also, at least it happened before you moved in and did not ruin any of your personal furniture and other items if it had become worse in the future. At least the issue has been found and is being fixed.

Thank you for the reassurance. The HOA's insurance came out a couple days ago and inspected the damages. My fiance overheard them saying they do not think they'll cover any of it. Not even the insulation and drywall. My next question is, if the HOA docs state they are liable for all damages due to a common ground component failure and now their insurance isnt covering it, don't you think the HOA docs supersede their insurance master policy and they are still liable for the repairs? The mold remediation was complete and tested negative for spores. They pulled the carpet and quite a bit of drywall in the joining bedroom. They are going to excavate the planter box and fill with concrete. They will also be injecting the retaining wall with a form of insulation to seal it. In the meantime our insurance company already cut us a check for what they estimate is the cost of damages and repairs. We had our trusted contractor come out to give an estimate. The estimate was way more, almost double the amount our insurance company paid us. What do you guys think thus far?

Did you accept and cash the check? Seems if so, you did it based on what they said. Your bad.

AndrewB13 (California)
Posts: 4

Posted:

I have not even opened the envelope. So no not yet.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AndrewB13 on 06/08/2017 5:54 PM
I have not even opened the envelope. So no not yet.

Do not. Call them and tell them the amount is below what a licensed and bonded contractor told you what the repair would cost. Go from there.

JeffT2 (Iowa)
Posts: 880

Posted:

The association has a duty to maintain and repair the common elements. It does not matter what the insurance does and does not cover, so you are right that the association must repair any common elements. That would include portions of the exterior walls. Do you know which parts of the exterior walls are part of the definition of your unit in your governing docs? And which part is common element?

The association must also pay for any damage that results from their negligence. The failure of the irrigation system is not necessarily negligence. It might be negligence if they knew it was bad and did nothing, or if there were similar failures and they failed to inspect the system, or if they used bad parts or unqualified handyman to repair (and the part/repair caused the problems). It might not be negligence if this was the first time a failure occurred or if this system does not normally require inspections. You cannot automatically assume negligence.

If your insurance company thinks the association is negligent, they will go after the association for reimbursement. You can call your adjuster to discuss this.