Toilet Leak - 2nd floor condo

Upstairs condo refuses to address a toilet leak because they don’t see any water upstairs.

January, 2021 – Toilet leak staining downstairs ceiling. Water traveling to ground in wall stubs. Owner refused to bring in a plumber. HOA interceded, hired a plumber. Plumber determined leak is caused at the base due to a recent uneven floor installation. Plumber would not repair because 1/2” gap at base. Owner brought in a handyman to repair.

September, 2021 – Same toilet. Water leaking through exhaust fan in ceiling. This time there was also another leak in the tub area. Buckets were used downstairs to catch water. Upstairs refused to address. HOA interceded again. 2nd plumber, another one, also determined that the uneven floor was not allowing for a good toilet install. Shimmed the toilet in place and replaced the tub spout leaking at threaded connections.

October, 2021 – Same toilet leaking again, small leak. Condo is now vacant. Water running inside wall to ground. Leak appears when someone is upstairs and flushes the toilet. Advised owner that the HOA will re-call September, 2021 plumber to investigate. Owner hires their own plumber. They come, flush the toilet 2-3X, wait downstairs for 5 minutes and determine it’s a rainwater leak.

Owner has been charged back for all HOA plumbing bills.

Owner is combative and is refusing to address the repair stating it’s not their toilet. There is raw sewage leaking down from upstairs. It’s their floor renovation not allowing the toilet to sit level. They now want to talk to someone else. Haven’t yet told them that I’m it.

Until the uneven floor is fixed, any repair will fail. How does the HOA proceed? HOA does have a “right to enter”. Can we exercise this right and fix her floor?

***14.RIGHT OF ENTRY INTO CONDOMINIUM UNITS IN EMERGENCIES AND FOR MAINTENANCE OF COMMON PROPERTY. In case of any emergency originating in or threatening any Condominium Unit, regardless of whether the Owner is present at the time of such emergency, the Board of Directors of the Association, or any other person authorized by either, shall have the right to enter such Condominium Unit for the purpose of remedying or abating the cause of such emergency, and such right of entry shall be immediate.***

-- I agree with CathyA3 that this is quite serious and an emergency.The raw sewage in particular has huge implications when it comes to (1) risks to the downstairs owner's health and (2) repairs.

-- If you are not using an attorney at this time, then hire one, and get her/his opinion a.s.a.p. I would think at a minimum the attorney will want to send a demand letter like yesterday stating in no uncertain terms what will happen next and that the upstairs owner needs to keep the association informed of every step the upstairs owner is taking.

-- I would think the association's not taking strong and immediate action holds it out to liability to the downstairs owner.

-- I would be far less concerned about any threats the upstairs owner is making.

-- I would be querying the appropriate departments of the city and state about health concerns and whether the city or state needs to be involved or deems they need to inspect the building.

Yes, per your citation, Pat, your assn. has the right. to enter this unit and make whatever repairs re needed to protector other condos and your common areas. In stacked condos, any water leaks are emergencies because of the damage they can do to the common areas or other condos.

Do your CC&Rs also have an enforcement clause? This would say that if an owner causes damage, they damage can be fixed by the HOA and the Owner would be billed after a hearing. Has your Board/PM sent th owner a letter yesterday requiring them to fix the floor that they made uneven?

With others, do get a proper attorney's opinion. How many units are there in your assn., Pat. Are they all two stories tall, or are they taller?

Kerry,

We have 144 units, 2 story's tall. We are 42 years old. 20 buildings with 4-8 units each.

Hadn't even thought about bringing the owner to a hearing or what our 42 year old governing documents say about enforcement. Hearings are a PITA and focus has been on a remedy.

We notify owner's that if a maintenance issue is brought to the HOA's attention and they ask for assistance, if the HOA determines it to be an owner issue they will be charged for the invoice on their owner account. We have not had any owner push back on those charges. We are very diligent in our documentation and have not been challenged by any owner.

UPDATE:

Called the recent plumber's office this morning. Spoke with the person who had just gotten off the phone with the upstairs owner. Owner called them. I called to ask if the plumber could provide additional information to the notations on the invoice regarding the flooring under the toilet. The owner called to complain that their caulking in the shower area wasn't good. The residual leak is from the toilet.

Plumber offered to return and address the situation as a courtesy to the recent invoice during regular business hours, M-F, 8-5. Owner stated that they would only be available on the weekend. Plumber offered morning, lunch time and afternoon times. Owner threatened legal action while on the phone with the plumber.

Owner can threaten all they want. Leak needs to be fixed. Sending all info over to HOA attorney today.

Not the HOA's first issue with this owner for failure to address leaks.

Owner does not comprehend that if you insist on driving the bus, hire your own driver (vendor) to fight your battles. These vendors were invoiced by the HOA. I fully understand why vendor's are reluctant to perform HOA repairs.

I am still wondering why the HOA attorney is involved or the HOA's insurance? This is YOU and your insurance issue. Neighbor vs neighbor. After that gets settled then may get the HOA involved in what is determined to be their responsibility. Which may or may not be what you think it is. If it is caulking around the toilet causing the issue, then that doesn't necessarily mean HOA responsible. It's an installation issue. If the pipe was leaking due to corrosion/age then could be HOA issue.

So before you go jumping to the HOA's lawyer, should be jumping to your insurance company. Otherwise your just creating yourself more bills than you really need to. Legal expenses are your choice at this point. Plus if your going to the HOA for their insurance/lawyer then expect them to make you pay their expenses. A HOA's deductible isn't necessarily that low. Ours was 20K deductible just to give a clue. Plus it was ALL the HOA members that had to pay in to cover those expenses. So your using your HOA's resources and your neighbors. I am sure a few of them won't like that.

My impression, Cathy, was that the HOA needed to step in because the unit Owners will not fix the leaks. It's, then, the HOA's job to repair the problem because it's the HOA's job to protect the common areas and other condos. I've been on the board of our high rise for several years so am pretty savvy about such stuff.

Since the leak or leaks are the r e. sosbility of the Unit owner, their insurance covers the damage to other units. It becomes a conversation between the two ins. companies.

Either way, unless Pat's documents say something else, the HOA can and must gain access to the violating unit, fix the leaks that and bill back the owner.

Melissa, once again, I don't think stacked condo units and their governing documents are in your area of experience.

Pat

I agree with you forcing the issue as the tenant/owner owner seem to not want to get the problem fixed. There might well be structural damage to common area/building between the units which the association is responsible for and should act on. I would go as far as to say the HOA might could gain legally, force able entry to the unit to facilitate the repair. If force able, have a police officer present.

It's exactly in our CC&Rs as you suggest, JohnC. fortunately, in 20 years our Assn has never had to break down a condo door to enter to fix a leak that threatens the common area or other condos. Nor have we needed to call to hearing the owner who refused to fix it forcing the Assn. to do the repair. But, per our documents clear cut enforcement clause, we certainly may.

We would get advice from our GC if that were to occur. Meanwhile we've had plenty of leaks caused by Owners and they or their tenants have always been cooperative.

From Max's description, the 2-story condo sounds just like our high rise: The HOA is responsible for plumbing beyond the units' walls. the owners is responsible for their toilet leaks, grout leaks, etc. Our 3-story low rise condo in Charlotte NC had the same obligations splits. It's very clear in our CC&Rs and our current rewrite does (finally) have a Maintenance Matrix Exhibit

Have had to break down 3 doors. Sink valves busted upstairs and frozen pipes. No one home. Must get the water shut off ASAP to minimized damages.

We call 911 for the Fire Department. They come right away, bust the door, shut the water off, and clean up as much water as they can, and secure the property. It's entertainment for the neighbors.

They leave a report for the owner with their findings of the cause of the leak that the owner can supply their insurance company.

It's not an HOA issue unless it was a community element failure, then we repair the failure, or the damages are over our $10,000 Master Policy deductible. Then the HOA determines to either open an insurance claim or pay out of operating funds.