Crawlspace Ownership and Maintenance

Hi all, I’m hoping you can provide some guidance and advice with my situation. I own a condo on the second floor in an 8 unit building. There are 4 crawlspaces under each 1st floor unit that contains the water heater heaters for the unit directly above the crawlspace and for the second floor unit. These crawl spaces can only be accessed from the 1st floor / ground floor unit. A simple diagram below:

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1357
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Unit 1 and 2 water heaters and water pipes are located under unit 1 crawlspace (3, 4, crawlspace) etc. Who is responsible for these? Are they considered to be restricted common for the first floor units? The CCRs mention only the following:

“All common areas and facilities covered by or appurtenant to any unit as so designated on Exhibit B, to which reference is hereby made for this specific purpose are limited common areas and facilities whose use is reserved to the lawful occupants of that unit.”

Exhibit B provides floor plans and building elevations but does not show these crawlspaces. My problem is that my pipes have frozen twice in the last two years since unit 1 owner continues to unplug a heater that was placed by the management company to prevent the issue from happening in the first place. The owner of unit 1 feels that they should not be paying to heat the space (note that their water heater and pipes are in the same space and have also frozen). Other first floor unit owners have taken it upon themselves to add insulation to their crawlspaces in order to keep the space and their floors warmer and remove the need for a heater in the crawlspace.

I’ve asked the board numerous times to provide guidance on responsibility but they just keep giving me the answer of “we’re still looking into it”. What can I do to force the answer from them? Is the language in the CCR as to restricted common area clear enough?

1) only accessible from the ground floor unit. You must ask the unit owner of the ground floor to enter their unit or via the management company or board.
2) All units pay directly to the power company (separate meters)
3) 1 heater installed by the management company / association
4) not much in the governing docs except from what I posted with regard to limited common area

Have you read and re-read your governing documents, looking for more clarification? If what your first post reports is all your governing documents say, then I think your condo has a difficult infrastructure scenario with a board apparently ill-equipped to understand the gravity of the situation and get you an answer. As I think you know, things could get way worse way more quickly. It's terrible to have to hire an attorney for legal disputes over real estate. But it's also pretty common. Barring learning more from your condo's CC&Rs, I think the prudent course would be something like the following:

-- Write a formal letter to the downstairs unit. Explain (again) the situation. Ask them to sign a legal agreement regarding maintenance of the space heater, to include you paying xyz for the electricity, followed by an agreement to insulate the space, splitting the cost. You could each hire an attorney to review the agreement. Or you could skip this and see if the agreement gets you the results you want.

-- If this does not get cooperation, hire an attorney to evaluate. Have the attorney come up with an appropriate demand letter.

-- There are laws on landlords ensuring a unit has hot water. In this instance and as a matter of law, the condominium association may be the legal equivalent of a landlord. In other words, your assessment dollars pay the condo association to maintain xyz for the benefit of the residents. In this case, depending on the governing docs, the association may be responsible for insulating the crawlspace. But more information is needed about who is responsible for what before you can ask the Association to stop the pipes from freezing. My point is there may be more law (city ordinance; state statute; federal housing law) backing up an argument that the association needs to fix this.

I’ve scoured through it and there isn’t. I’ve had to pay for a plumbing service to come out each time to thaw them out. This is surprisingly and older complex (over 30 years) and this question has never come up. The assumption has been made by other unit owners that it is their responsibility since they’ve gone ahead to insulate on their own. Unfortunately, the unit owner below me is a bit difficult and the reason why I asked the board to officially declare who is responsible for these (the unit owners directly above the spaces or the association). I’m guessing the board is being cagey since if the association is responsible then they may have to reimburse those that insulated the space on their own or if they say it’s the unit owner have an irate one on their hands and the process of having to enforce ownership against this unit owner. I’m at a point where I’m thinking that it needs to go to court but hesitant since other owners will end up paying for legal fees by way of our dues or assessment. Is the board not doing it’s job by not calling a decision of ownership?

Wow. You have a real problem my friend. Our HOA has similar infrastructure issues and we've had bad (really bad) homeowners who just want to see the world burn. The depravity of some people is amazing.

IMHO, I would pay a company to come out and insulate my own pipes thus eliminating the need for a heater. If the first floor homeowner refuses to grant access then sue that homeowner. It would be a much more specious argument to say the HOA was responsible for this limited common area space.

If the water heater for your unit failed, who would be responsible for replacing it?

Since you stated there are eight units per building, how many power meters arena the exterior walls? 8 or 9?

8 meters I believe but I will check again. I see where you are going with this though.

That’s the question. Who? The association or the unit owner above the crawl space who is the only one that has access to it. Other ground floor owners have already acted on their own and spray foamed their crawlspaces with the assumption they (the ground floor units) were responsible. It’s just baffling how a “mature” association such as this can’t answer or is unwilling to answer the question of ownership.

If you start reading other threads here, I think you will come to understand that volunteer condo and HOA boards are notorious for dragging their feet, even on important legal and infrastructure questions. Believe it or not, the quickest solution may be to run for and get elected to the board with like-minded individuals. Else you will have to hire an attorney. As you noted, it is fortunate that Vermont is starting (barely) to thaw and so you may have several months to get this resolved.

Others and I will hear out your venting. But there is one helluva lot of experience here. People here don't mess around. If you want change, distill the counsel from folks here into appropriate action.

If I decide to go with the heat pipe tape and insulation, I should have it professionally installed right? I’m looking at this from a liability perspective if something were to happen since I certainly am not responsible (based on the current ownership question) for this crawlspace. I would assume DIY is not recommended (although I am pretty handy and technical) and should I have some form of legal liability release document drafted by an attorney and signed by the association / board and unit owner?

JG
I think your focus on ownership of the space is misplaced.
The more important issue is - Who is responsible for maintaining the equipment in the space?
It looks like you're leaning toward improving insulation which would be a sound decision on your part if you are ultimately responsible for repair and/or replacement.
On the other hand, if the HOA has taken responsibility for crawl space expenses for other units, that would be something to investigate further.

1. How are the boundaries, dimensions, of the Condominium Unit that you own, described in the Declaration?

The only description in the bylaws are below:
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3. Description of the Buildings and Units.  Architect’s plans are included as Exhibit B hereto, to which reference is hereby made for the matters specified in accordance with V.S.A. S1326

4. Dimension of Units.  Each unit consists of the area measured, horizontally, from the unit side of an exterior wall of a building to the unit side of the opposite exterior wall of from the unit side of a partition between two unites to the unit side of the opposite partition between two units or the unit side of an exterior wall, as the case may be; vertically, each unit consists of the space between the top of the unit first floor and the unit side of the flat ceiling above for ground floor units or the unit side of the pitched roof for upper level units as the case may be, except that windows and doors shall be considered to be within the area of a unit. Further, details are contained in exhibit B hereto, to which reference is hereby made.

5. Description of the Common Areas and Facilities
(a) All areas and facilities contained within or located upon the Property other than those included in the boundaries of any unit as above define are common areas and facilities.
(b) All common areas and facilities covered by or appurtenant to any unit, as so designated on Exhibit B, to which reference is hereby made for this specific purpose, are limited common areas and facilities whose use is reserved to the lawful occupants of that designated unit
*************

2. Also in that section where the boundaries are defined, there are often words such as: nor shall such owner be deemed to own the utilities running through the unit which are utilized for or serve more than one unit except as a tenant in common with the other owners.

No language whatsoever.

Are there similar words in your Declaration?

None

3. Approximately how large is your Association – how many Units? You mention a management company. Is there a management company, or is the Association self managed?

32 units. Hired Management company.

4. I have a few further comments, but first I, and I think other poster also, would like to know a bit more about your Association.

This isn’t rocket science.

Do it yourself or hire it done.

Wrap the heater, insulate the pipes. This may be sufficient.

JG14, OK on the additional references, words, from your Documents - that helps.

1. Referencing Section 4. Dimension of Units: That section provides the words, which you need to reference, re what the first floor or ground floor Owner owns. Specifically, re the vertical boundaries: “vertically, each unit consists of the space between the top of the unit first floor and the unit side of the flat ceiling above for ground floor units”

Based on those words, the first floor Unit does not own anything below the top surface of first floor, unit’s floor, which makes it clear the crawl space is Common area, Association responsibility and expense to maintain, repair, rebuild, make improvements to, etc.

And this is also how RoyalP interprets. And he also added: As per 5(b) since the crawl space(s) are NOT in exhibit b they are NOT limited common areas reserved. And I agree.

2. It is important to remember that we are discussing Condominium Units. Which are different from Units in a Homeowners Association or in a Townhouse Community. At least in Vermont it is, and in a number of other states also.

From Vermont Statute Title 27A, the newer Statute, those Definitions that apply.
1-103. Definitions
(4) "Common elements" mean:

(A) In a condominium, all portions of the common interest community other than the units.

(B) In a planned community, any real estate within a planned community owned or leased by the association, other than a unit.

(8) "Condominium" means a common interest community in which portions of the real estate are designated for separate ownership and the remainder of the real estate is designated for common ownership solely by the owners of those portions. A common interest community is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

3. It is unfortunate that the first floor owner, below you, is a bit difficult, but the Board and/or Management Company needs to explain that the crawl space is Common Area, and as such is Association responsibility.

Since the first floor Owner does not own the crawl space – and neither does the second floor Owner – ONLY the Association should be “fixing” the problems there. Of course, if the water heater needs to be replaced, that is the responsibility of whomever owns that water heater.

4. You wrote “This is surprisingly and older complex (over 30 years) and this question has never come up”.

Does not surprise me though, because 30 years or so ago, Condominiums were “a new concept”, and as such, early Boards often did not understand, and often let unit Owners do things, that they should not have been allowed to do.

But just because earlier Boards apparently allowed Unit Owners to insulate on their own, and/or make other changes, that is not a reason, not to follow your Documents – starting now.

Needs further discussion, but IMO, no reason to assume that, as you wrote: “I’m guessing the board is being cagey since if the association is responsible then they may have to reimburse those that insulated the space on their own".

If approved and/or allowed at the time, what is done is done, it is just something to keep a record of, in the Association Files.

5. Back to: I’ve asked the board numerous times to provide guidance on responsibility but they just keep giving me the answer of “we’re still looking into it”. What can I do to force the answer from them? Is the language in the CCR as to restricted common area clear enough?"

Based on the additional sections from your Documents that you posted, IMO, there is enough language.

Have your requests to the Board been in writing? Were your requests by email, or by US Postal Mail? How many times have you asked? What did you write? Was their reply to you in writing?

By the way, I have numerous emails with the board and management company requesting the information.

So Jeff why do you believe the first floor unit should pay to heat the pipes that are not in their space? If the HOA paid to install the heat tape they should pay to operate it. It is the HOA's responsibility to provide an space that will not let the pipes freeze in the common area.

I don't get where you're coming from Sam.

Real Estate is an "as is" purchase. If the problem was there when you bought the unit, and nothing was intentionally hidden from you, then it's on you to deal with what you got.

Most COAs are underfunded. The OP didn't provide enough information for us to speculate on how these crawlspace improvements might affect the COAs planned reserve expenditures.

If the Board decided to do a Special Assessment and take care of all these problems in one pass, they could. But obviously, they decided against a special assessment.

I agree.

JG14,
1. To answer your question re DIY heat pipe tape, and “I should have it professionally installed right?” If it were me - yes, I would have this done by a Licensed Plumber and/or Electrician who has contractor’s liability insurance, etc. Even, for work performed inside of your Condominium Unit, it is a good idea, IMO to only use Contractors who are fully insured.

2. Re your statement: “I don’t believe I’m responsible for any damages caused if the unit owner below me unplugs a heater that was placed by the management company/association to keep the place warm.” I agree, association responsibility.

3. My experience working with Management Companies is limited. Condo Associations I am familiar with, are all self-managed. What services are your Management Company supposed to provide? Do you know, if they are expected “to know” your Condo Documents?

4. Re court: You wrote that you have hired an attorney. Seems to me, that might possibly be in the future, not now. As you know, Vermont is a very small State population wise, and as such, there are only a few Attorneys, that I know of, whose practice areas, include Condominium and Homeowner Association Law in Vermont.

5. JeffT2’s post re crawl space areas, gave good advice. And I also agree that SteveM9 gave good advice.

6. Should you decide to “write letters; there are regular posters here, who are “good with words”, that would probably help you draft such a letter.

7. You have described the eight (8) Unit Apartment type building, that you live in, and you also told us, there are 32 Units total. Are there three (3) other similar buildings, with crawl spaces?

Sounds like Greece.

Lets vote on if we think the pipes are frozen.

Lol.

My theory of what actually happened:

- Board decided to do something about the freezing problem.

- Compared prices on getting just heaters vs. getting heaters and installing COA owned electric lines to plug them into.

- Couldn't justify the difference in cost. Went with heaters only - thinking that tapping into 1st floor owner's electricity wouldn't add much cost.

- Did a lousy job of communicating.

- Didn't come up with a plan of how to deal with possible homeowner push-back.

- Decided not to deal with owner-to-owner disputes about one owner paying electric costs for another.

- Board now in turmoil because members who wanted to to install COA electric lines originally, but got outvoted, don't think they should be taking heat for something they thought was a bad decision.

- Board facing new set of problems - If they do anything more, some owners are going to be looking for reimbursement for what they did on their own. No one wants to take ownership of the sorting out process.

Am I right? Doesn't matter.

Did I learn something from reading this thread? Yep. A lot of good ideas expressed. Thanks.

Haven't kept up with the post. However, should point out something. Insulation in crawl spaces from a construction stand point is a bad idea. You don't want insulation under the floors of a crawl space. Especially the kind that contacts the under side of the floor. The reason being is it traps moisture. That moisture in turn rots out the floors. May even cause mold to form on the support boards.

Insulating of the pipes may be done in a different way as insulating the crawl space may be limited. They could be wrapped. It doesn't guarantee they won't still freeze up. I keep my pipes to my washer wrapped as there is no heated space in my wash room area. It's attached to my garage.

So can't say the HOA should install insulation to bottom of the crawl space. they could be on the hook of replacing floors. A much more expensive issue. Frozen pipes happen. It sucks but it just does.

I received the legal opinion on this issue which states:

1) crawlspaces are common and maintenance is the responsibility of the association. However
2) Maintenance that directly services or benefits a unit is the responsibility of the unit owner

So, in my case, the pipes that are freezing are my responsibility since they directly service my unit. Since the unit owner directly above has the same issue of frozen pipes in addition to high heating costs due to drafts and heat loss from their floors (crawlspace directly below not insulated), that would mean it is their responsibility to insulate since that is directly to their benefit. However, the language can be updated in the bylaws or declarations to include insulation as an association responsibility but i doubt that will be the case since since it could cause friction with those that insulated their crawlspaces on their own.

So, in case insulation isn't going to be the course of action, my approach will be to install auto temp sensing heat tape and insulate my pipes which would isolate my unit. I also asked that the opinion letter be sent to all unit owners and I will also send out a synopsis of the events that transpired since it's being positioned I'm the direct cause of the increase in legal fees incurred by the association this year. I asked the BOD to clarify ownership to which they were unable to answer at which point I engaged my attorney to review the declarations and bylaws. It was the BOD's choice (only option since they didn't have or couldn't answer a basic question of ownership and responsibility) to engage the association attorney. Can anyone chime in for some feedback?

Did the attorney provide the 2 paragraphs of text or just the 2 bullet points? I read the 2 bullet points to mean the COA has to maintain reasonable temperature in crawl space because it effects two units not just "a" unit.