Shared maintenance items

What usually happens in cases involving maintenance, the condo owner is responsible for all parts of the unit (as defined in the CC&Rs, which will state whether pipes serving a single unit are part of the unit or common elements) and the association is responsible for repair to the common elements. The source of the damage is generally not considered unless the CC&Rs say so (that would be unusual).

Many associations make the mistake of assuming that damage originating in the common elements - eg, a roof leak results in damage to someone's ceiling - means that the association has to cover the cost of all repairs. Not so. It's who is responsible for what according to the CC&Rs.

The only time this can change is if there was an insurable event that caused the damage. That's not what happened here.

So... long story short: the OP is responsible for repairing the part of his unit, and the Association would cover the costs of any damage to common elements (eg. the foundation). Good news for the OP, although he may have to fight with the board.

I would go along with if the pipe services one unit only and there is damage caused by the pipe leaking, that the unit owner is responsible for the damage, and of course fixing the pipe.

My recommendation is to file a claim with YOUR insurance company. Their adjuster, if they feel the association might be responsible with contact the association's insurance. The insurance company will know more than a board member will as they will insure the association based on what the CCRs state the HOA is responsible for.

My comments were quotes from our insurer and our attorney, and apply only to maintenance items. Of course it's possible that other CC&Rs say that the source of the damage does matter. Ours don't. And frankly I prefer it our way since we don't waste time haggling over who is to blame and what is "fair": we pay for ours, they pay for theirs, done.

The dividing line comes in when the COA has all-included insurance *and* you're dealing with an insurable event - eg. a storm that damaged the roof vs. a slow leak on the roof. For example, my association's insurance picked up costs for a fire inside an owner's kitchen. The insurance paid for replacement of cabinetry, countertops, and flooring back to the quality of the original fittings, it did not cover the cost of damaged personal belongings (the ol' "flip the box over and whatever falls is the owner's responsibility" rule of thumb for all-included insurance). But insurance type matters. Without all-included insurance, the cost of the fire repairs would have fallen on the owner.

By contrast, a slow leak on the roof that results in water damage inside a unit is a maintenance item, and COA insurance doesn't get involved. The COA pays to repair the roof but the owner is on the hook for all repairs to the his unit. No flipping the box over, doesn't matter since it's not an insurable event for the COA.

(Note: insurance type matters. Without all-included insurance, the cost of the fire repairs would have fallen on the owner. I suspect that the difference in insurance types is related the differences in how the "unit" and the "common elements" are defined.)

So... what makes the difference when deciding who pays for repairs: insurable event vs. maintenance item and the type of insurance coverage the COA has. A slow leak anywhere is a maintenance item, not an insurable event as defined by a COA's insurance (although the owner's insurance may cover it).

And if this makes you crazy, know that even insurance pros scratch their heads over condo insurance. To quote someone else here: "Condos are the worst." It's ironic that condos attract so many first time home buyers because they're a complicated form of ownership in general - and for all their similarities, there are important differences that can trip up people who are expecting consistency.

Joshua,

I can understand the HOA's point of view. The previous owner has likely allowed the leak to persist, creating the post damage and you bought the home and either were unaware of the damage or accepted it in order to close the real estate sale, thus inheriting the deferred maintenance.

If this were a condo, by definition, there's likely a different interpretation on unit maintenance. As a townhome, the burden likely falls to you.

These are examples of negligence, fault, liability, or responsibility, so in this case the HOA has to pay for damage caused by the common element.

In the absence of insurance (either because there is no coverage or the claim is denied or it is less than the deductible), then you have to consider who is at fault. In this case, Joshua was presumably not at fault in the accidental pipe leak, so the association has to pay to repair the foundation, not Joshua. When damage results from an accidental occurrence such as a pipe leak, where there is no negligence, then each entity repairs their own area.

Which is why I said that I strongly prefer the way it's done according to my community's CC&Rs: you do yours, we do ours, let's get it done.

The trouble with doing it any other way is that there has to be proof that someone was negligent or failed to disclose issues when selling the property. That means prolonging the back-and-forth - and meanwhile the leak or whatever continues, resulting in further damage and almost certainly a more expensive repair in the long run. And that's before you pay the lawyers. This does no one any good, except maybe the lawyers.

As Augustin points out, Joshua may have a good defense in court. The previous owner could also claim not to have known about the problem, and how do you prove otherwise unless there is a smoking gun somewhere (a documented service call from a plumber maybe?). If "blame" will determine who pays, it appears that this blame can be magicked away in court (nobody knew nuffink). So then what? You're back to what the CC&Rs say about who is responsible for maintenance items.

It's likely in this case that nobody knew anything. First time homebuyers can be remarkably clueless about this stuff. And leaks are sneaky by definition: often your first hint is the damage they cause and this can show up years later.

So how do you assess blame when no one did anything wrong? Easy-peasy according to my CC&Rs: you don't worry about it. You do yours, we do ours, we get it done promptly and minimize repair costs overall.

This is a good idea. Joshua, if your association insists that you pay for the foundation, then put in a claim on your insurance (liability coverage). Your insurance will either pay for the damage to the foundation or will defend you if they think you are not responsible.

I have doubts that an insurance company, that believes it is not liable for certain damage, will spend the time and money to "defend" its client.

Maybe something got 'lost in translation.' Maybe JeffT2 means something more like, where one insurer thinks another insurer should chip in to pay for at least some of a claim, the first insurer will go after the second insurer?

I am picking away at JeffT2 in this thread. I think this is not usual, and it's certainly not personal. Normally I have CathyA3 and JeffT2 pegged as something like the Co-Chief Justices of the HOATalk Supreme Court.

You seem to be speaking of an insurance contract that states the insurer will provide an attorney to the insured when a corporation takes the insured to court for damages, with the insurer claiming it has no responsibility for the damages.

I am not convinced that this sort of insurance is something that condo owners, for one, routinely arrange.

For me, the above is quite a fine point. I am not sure I am understanding. Or maybe I am totally misunderstanding. CathyA3, I doubt I can extract info from the net on your point. If you are game, I have a few questions.

-- You say that, generally or always, a HOA corporation owns the common elements. Furthermore, each HOA member has no lawful ownership interest in the common elements. Am I understanding you correctly?

-- You say that, by contrast, generally or always, a condominium corporation does not own the common elements. Instead, each COA member has an undivided ownership interest in the common elements. Am I understanding you correctly?

-- If you are correct, then what is the purpose of the ownership in a HOA being set up differently from the ownership in a COA? That is,why are documents are set up so that HOA members do not have any ownership interest in the common elements but COA members do?

-- I always thought that both HOA members and COA members are shareholders in their respective corporations. Do you disagree?

-- I may be inappropriately conflating ownership in infrastructure with ownership in real property (land). If this seems to be my problem, do say so.

-- One reason I am asking is because I recently heard of a condo association that is attempting to charge a condo owner with criminal trespass on the condo association's common elements. When I heard this, I thought, "No way. That's as ridiculous as charging John Smith with trespassing on the home lot that, by law, he jointly owns with his wife Jane Smith." Maybe the condo association could get a restraining order against the owner. This would be the same as Jane Smith seeking a restraining order against her husband. (Granted at this point, Jane has probably filed for divorce and the two sides have made some kind of arrangement with the housing the two jointly own.) But for the condo association and condo owner, divorce is not possible. A restraining order might be. But charging a condo owner with trespass on condo common elements, in which the Condo owner has an ownership interest? I am not seeing that any district attorney would ever pursue such a criminal charge. (If someone tells me to start a new thread on this particular topic, I might.)

FYI:

A townhouse-style dwelling can exist either as part of an HOA/PUD/landominium community or as part of a condo community. In the first case, the unit owner may even own the land beneath his home, and I'm not clear where the dividing line lies in the shared walls. By contrast, the owner of a townhome in a condo community will typically own from the drywall in, with framing, foundation and roof defined as common elements. Condo townhomes in my area can have basements or slab foundations (I assume they can also have crawlspaces, but I haven't come across any of these). From my experience, the foundation type has more to do with the lots the buildings sit on than anything else, although I'm sure there are other factors.

From the outside, HOA townhomes and COA townhomes look exactly the same. People also use the word "townhouse" to refer to anything that looks like one. So you need to read the CC&Rs to know what you're dealing with.

I live in a townhome in a condo community, and my HO6 policy covers everything defined as part of the Unit according to the CC&Rs in addition to personal belongings: drywall, ceilings, floor coverings, plumbing and electrical lines serving only my unit even if they are in an exterior wall, dryer vents, etc.

(It gets confusing when the master policy is all-in since it can appear that things have double coverage (ie. flip the box over). As I understand it - and I'm not an expert - the master policy covers portions of the unit when there is an insurable event from the COA's point of view; eg. fire, storm damage, etc. The master policy does not cover interior damage resulting from maintenance events such as roof or plumbing leaks - however, the unit owner's HO6 policy may well cover these things. So not really double coverage.)

I assume that townhomes in an HOA community are constructed differently and the CC&Rs define Unit and Common Elements differently. It would make sense that owners of these homes would need a different insurance policy - and insurance agents always ask for a copy of the CC&Rs before preparing a quote.

Regardless of what the association is (COA, POA, SOB, etc.) the op lives in a townhouse which by definition means no units above or below his unit and at the most, he shares one or two common side walls with another unit. Thus his his Home Owners insurance must be appropriate.