Responsibility for Pipes in Common Walls

BruceG5 (Texas)
Posts: 11

Posted:

I am the treasurer for a 40 unit condo association. The units were built in 1973. Unfortunately all of the governing documents are of the same age. In the past, the HOA Board determined that pipes in the walls that served individual units were the responsibility of the owner. Recently that has been challenged by two different insurance companies. After reviewing the applicable references, it does appear confusing/ambiguous. I have attached the two applicable sections. Would appreciate any feedback you have.

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AugustinD
Posts: 5,144

Posted:

Thank you for providing the relevant excerpt from your condo's declaration. This helps enormously.

Quote:

Posted By BruceG5 on 09/01/2020 8:14 AM
In the past, the HOA Board determined that pipes in the walls that served individual units were the responsibility of the owner.

I disagree. To review:

The limited common elements "may include" ... "pipes... located entirely within a unit... and serving only such unit..., and such portions of the perimeter walls, floors and ceilings, doors, vestibules, windows, entryways and all associated fixtures and structures therein, as lie outside the unit boundaries."

"Owner Maintenance"
"An Owner shall maintain and keep in good repair the interior of his own unit, including the fixtures thereof. All fixtures and equipment installed with the unit, commencing at a point where the utility lines, pipes, wires, conduits or systems (which for brevity are hereafter referred to as "utilities") enter the unit shall be maintained and kept in repair by the owner thereof... "

I do not see any ambiguity here. A leak in a pipe outside the unit's boundaries has to be repaired by the condo association.

Are you all having leaks inside the walls at your condo complex? I have seen this before, though at a condo complex closer to 25 years old.

Your condo association can duke it out legally and pay a fortune in legal fees while not fixing the underlying problem. Or your association can suck it up and start planning for major repairs, special assessing as needed. Owners are going to pay one way or another. I think it's probably more efficient to have the association start tackling these renovations.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AugustinD on 09/01/2020 8:52 AM
Thank you for providing the relevant excerpt from your condo's declaration. This helps enormously.

Posted By BruceG5 on 09/01/2020 8:14 AM
In the past, the HOA Board determined that pipes in the walls that served individual units were the responsibility of the owner.

I disagree. To review:

The limited common elements "may include" ... "pipes... located entirely within a unit... and serving only such unit..., and such portions of the perimeter walls, floors and ceilings, doors, vestibules, windows, entryways and all associated fixtures and structures therein, as lie outside the unit boundaries."

"Owner Maintenance"
"An Owner shall maintain and keep in good repair the interior of his own unit, including the fixtures thereof. All fixtures and equipment installed with the unit, commencing at a point where the utility lines, pipes, wires, conduits or systems (which for brevity are hereafter referred to as "utilities") enter the unit shall be maintained and kept in repair by the owner thereof... "

I do not see any ambiguity here. A leak in a pipe outside the unit's boundaries has to be repaired by the condo association.

Are you all having leaks inside the walls at your condo complex? I have seen this before, though at a condo complex closer to 25 years old.

Your condo association can duke it out legally and pay a fortune in legal fees while not fixing the underlying problem. Or your association can suck it up and start planning for major repairs, special assessing as needed. Owners are going to pay one way or another. I think it's probably more efficient to have the association start tackling these renovations.

I agree.

SheliaH (Indiana)
Posts: 6,964

Posted:

I also concur with Augustine and John.

If your community's reserve study never included that portion of the plumbing and it's over 5 years old, it's time to get one and make sure plumbing is included this time. You should seriously consider doing this before 2020 ends so you can use the recommendations to help prepare the 2021 budget.
and make sure plumbing is included. Yes, you're probably looking at assessment increases, and if the problem continues, you may also need a special assessment eventually.

Regarding owner responsibility, it's ok to tell homeowners they need to be proactive and pay attention to what they're throwing down the drain, as well as letting the property manager know of any leaks as soon as possible. I'd also urge homeowners to get sewer/water damage coverage added to their policies, so they can take care of any areas that would be their responsibility.

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:

The following statement in the Declaration may lead to people thinking there is an ambiguity:
" 'Limited common elements' means and includes those Common Elements which are reserved for the exclusive use of an individual Owner of a unit or a certain number of individual Owners of units, for the exclusive use of those owners, which may include: ... "

But two things:

-- LCEs are generally maintained by an association unless a Declaration says otherwise. Many sites discuss this. Perhaps of some interest: For post-Jan 1, 1994 condos, Texas Property Code Ch. 82, section 82.112 states: "(d) Except as provided by the declaration and Section 82.107, a common expense for the maintenance, repair, or replacement of a limited common element shall be assessed against all the units as if it were for a general common element." This is not applicable to the OP's pre-1994 condo (unless per chance the OP's condo's membership voted to make it applicable). Still, I think 82.112 is informative.

-- The Declaration's statements in the owner maintenance section seems to me to clarify that the maintenance responsibility for the pipes in the walls (and outside a unit's boundaries) is the Association's.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SheliaH on 09/01/2020 9:28 AM
If your community's reserve study never included that portion of the plumbing and it's over 5 years old, it's time to get one and make sure plumbing is included this time. You should seriously consider doing this before 2020 ends so you can use the recommendations to help prepare the 2021 budget.
and make sure plumbing is included. Yes, you're probably looking at assessment increases, and if the problem continues, you may also need a special assessment eventually.

Excellent points. If this condo's attorney agrees, then I think this will yield a somewhat radical change in reserve planning for the board. Owners need to be told: Well you either pay individually (if bad luck leads you to being the next victim of an in-the-wall pipe leak) or you pay collectively. Collectively is likely to be cheaper.

The downside is if the board had previously forced owners to pay for such repairs on their own, and now changes its 'policy,' these owners may seek reimbursement for what they paid.

I think (know) a competent, seasoned, wise Texas condo attorney needs to be consulted about how to proceed. I imagine there is plenty of expertise on this subject of who pays for what repair outside a unit's boundaries, on account of the damage from hurricanes.

KerryL1 (California)
Posts: 14,550

Posted:

Our newly 20 y.o condo high rise doesn't have any piping on its reserves study. probably time to put i on copper piping.

In Bruce's case, time to put on all piping.

Five year old buildings, though, do not need these on their studies. Best bet is to follow the advice of a certified reserves analyst.

JeffT2 (Iowa)
Posts: 880

Posted:

The point "k" looks like a general definition of limited common elements, and uses the word "may." There should be different section of your documents that specifically reserves those common elements as limited common elements. If not, then those items are not limited common elements. Have you read all the other sections of your declaration?

How do your documents deal with parking spaces and balconies, which are also listed as possible limited common elements?

Another issue is water damage from leaking pipes. Just because the association (or owner) maintains a pipe does not mean that the association (or owner) must repair all of the water damage when a pipe leaks. Liability for damage is a separate issue than maintenance. You mentioned insurance companies. Do you have water damage and insurance claims?