Crawl Space responsiblity not clearly defined in CCRs - Damage to crawl space because of a pipe on that terminates on the roof

Started by AnneS6 • 22 replies • 514 views

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AnneS6 (Utah)
Posts: 10

Posted:

Hi,

I'm on the board of an HOA for about 20 3-story condos. I happen to live on the top floor of one of those buildings. I recently had a leak in my ceiling. It was discovered that the cause of the leak was coming from the roof because the cover of a pipe was broken and thus a large gap between the pipe and the roof was letting in rain and snow. The main damage was to the crawl space.

The damage assessed is: "Moisture is coming in from the roof through a vertical termination that is broken allowing water to travel down the PVC pipe into the attic space. Affected material is blown in insulation in the attic space, framing, and ceiling sheetrock. This is a Category 3 loss due to the source being from wind driven rain."

The CCRs do not state what the crawl space is classified as and thus who is responsible for the damage. I believe the crawl space is only accessible through my unit, but it's not really an attic, I can't store or put anything up there. I believe there is also a firewall between my unit and the next door neighbor's. It was also found that 8 other pipes terminate on the roof and are most likely from the other units. The covers for these pipes are all cracked and leaking as well. It is believed these pipes are ventilation pipes for the other units, but it's not known exactly what they are for and where they come from.

Who is responsible for the damage? I don't think it should be me, but I want to find the correct answer. As a board member and with 20 other buildings in the HOA, the answer needs to be determined for future reference.

I read in another post from 2017, that it is the HOA's responsibility to make sure no person's unit is negatively affected by common areas. Is this a federal law or is there some legal support for this? Because definitely the top units are negatively affected by taking the risk of leaks from the roof, especially from these pipes that terminate there and may come from other units. .

I also read from that same post, that the presence of a firewall would indicate that it's a common area. Is this true and is there some documentation for this?

This is what the CCRs state about the Common areas:

(a)the land included within the Condominium Project;
(b)all foundations, roofs, columns, girders, beams, supports, exterior walls and surfaces (excluding windows and window frames and doors and door frames), gutters, downspouts, soffit, and fascia of any buildings in the Condominium Project;
(c)any halls, corridors, stairs, and stairways, entrances and exits which are designed for the use of more than one Unit;
(d)outdoor grounds and landscape, outdoor lighting, fences, sidewalks, parking spaces, streets, sport court, tot lot, and other installations or facilities existing for common use;
(e)all installations of central services such as power, light, gas, water, and sewer including all pipes, wires, conduits or other utility lines running through each building and utilized by more than one Unit;
(f)all any mechanical, plumbing, or other equipment, apparatus, and installations existing for common use;
(g)all other installations and facilities included within the Project for common use such as outdoor lighting, sidewalks, open parking spaces and streets as may be provided for in the Plat or this Declaration;
(h)everything included within the Condominium Project, excluding the individual Units, as identified on the Plat; all other parts of the Condominium Project necessary or convenient to its existence, maintenance, and safety, or normally in common use.

Concerning (h), I called up the County Recorders office and they say that the Plat registered with them (my Plat) does not include the crawl space.

Later on in the CCRs, it says this about the Plat:
Plat shall mean the Condominium Plat recorded with the County Recorder, and all amendments thereto. "Plat" shall also refer to any additional or supplemental plat(s) that may be recorded in the future. The Plat is hereby incorporated into and made an integral part of this Declaration, and all requirements and specifications set forth on the Plat and required by the Act are deemed included in this Declaration. If any conflict exists between the Plat and this Declaration, the Declaration shall control.

Thank you in advance for anyone that can help me!

AnneS6 (Utah)
Posts: 10

Posted:

Sorry, I don't know how to edit my original post.

I also found this regarding Limited Common Area:

"Limited Common Area" shall mean a portion of the Common Area specifically designated as a Limited Common Area in this Declaration or the Plat and allocated by this Declaration or the Plat for the exclusive use of one or more Units to the exclusion of other Units. Conveyance of a Unit includes the use and enjoyment of the Limited Common Area appurtenant to the Unit. The Limited Common Area shall be appurtenant to each respective Unit where so identified and may not be severed from the ownership of the Unit. Limited Common Area includes the driveways and patios that are immediately adjacent and contiguous to certain Units. The use and occupancy of the Limited Common Areas shall be reserved to their associated Unit; and each Unit Owner is hereby granted an irrevocable license to use and occupy said Limited Common Area.

MaxB4
Posts: 3,513

Posted:

At the end of the day, it is either you or you and your other neighbors. That is what makes up an HOA.

MaxB4
Posts: 3,513

Posted:

For example, let's say the cost to repair was $4000.00. Send a bill to each owner for $200.00 each, including yourself.

AnneS6 (Utah)
Posts: 10

Posted:

Thanks for your response.

I'd happily pay $200 instead of $4000. But of course, the owners of the units would ignore a bill from me. The HOA they would take more seriously. Yes, I completely understand that if the HOA pays, it's really everyone, including me paying. That's what this is all about. Is the risk and responsibility on the individual or is it on everyone via the HOA?

However, your scenario still doesn't help me find an answer. The HOA needs to figure out what the answer is, not just for me, but for future issues. I won't be the only one having damages in the crawl space because of these pipes. So, is the individual responsible, based on the non-answer in the CCRs, or is the HOA responsible? From my research, I think the HOA is responsible.

AnneS6 (Utah)
Posts: 10

Posted:

One more thought: If the HOA does send a bill to everyone, they will need a justification from the HOA and CCRs that supports the bill. And individuals, like me, want a justification from the HOA and CCRs that the individual is responsible for the entire bill. This is what I'm trying to figure out, the justification for either result.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

first your terminology is all wrong. Its not a pipe cover that is leaking it is the flashing boot that goes around the pipe.
Cheap rubber flashing boots leak all the time.
The roof pipes are to vent sewer gas from any plumbing in your house and are required by code. Or the thicker metal ones are for venting your gas hot water heater. Most cheap ass builders use one boot, you need at least 2 metal ones to prevent them from leaking again in 10 years. https://www.youtube.com/watch?v=cdpRrL_FBDo shows how it should be done

Also crawl spaces are at the bottom of the building, not at the top floor of a building. you probably have a knee wall.

A failed roof penetration it the COD's responsibility. Take it out of reserves with BOD permission and then put it in the minutes saying the BOD spent the money.

lastly $4000 sounds pretty excessive. unless you have a mold issue, a sheet of drywall some insulation and a couple of boots might be $200
labor might be $1000 max for one days work.

vis ta vie

CathyA3 (Ohio)
Posts: 6,299

Posted:

INFO DUMP! Take this with a grain of salt since these things will vary by state, by community, the nature of the damage, and according to whether or not insurance gets involved.

Generally a leak will be considered a maintenance issue, unlike damage resulting from a storm which would be an insurable event from the association's point of view.

With maintenance issues, the association will repair common elements and the unit owner will repair the unit. Repairs to limited common elements will vary by community. In some, the unit owners maintain the limited common elements. In others, the association will repair them (for example, in a high rise it makes no sense for individual owners to be responsible for balconies. Your CC&Rs should define who takes care of yours.

Even in the case of a maintenance issue originating in the common elements, the unit owner's HO6 policy may cover repairs to the unit since that's something outside of the owner's control.

According to my association's insurance agent and our policies, they do not consider "negligence" when determining who pays for what - it's strictly what the CC&Rs say. Others on this site have said that they do look at "negligence". However, it wasn't always clear in the discussions if the board was acting out of a mistaken belief that the responsible party should fix everything or if their CC&Rs/insurance policies actually made the association responsible for the entire mess. I also put "negligence" in quote because that can often be disputed.

In addition, condo community insurance comes in two flavors: all-included or bare walls. Your CC&Rs should say what kind your community must carry. With all-in insurance, the association's policy will all cover repairs to portions of the unit *if there is an insurable event* such as storm damage. This is confusing since all unit repairs are the owner's responsibility if it's a maintenance issue such as a slow leak. With bare walls or drywall-in insurance, the association's policy won't cover any unit repairs.

(Our insurance agent said that sometimes associations end up paying for stuff that's not really their responsibility. Quote: "Even the pros sometimes scratch their heads over this stuff.")

Also, "damage to the crawl space" is vague and doesn't necessarily refer to a single thing. What parts were actually damaged? For example, it's not unusual in condos to define pipes and utility lines that serve a single unit as part of the unit, even if these items are located in the common elements. So it's possible that the association may cover parts of the crawl space repairs but not all of them.

If your CC&Rs don't define "crawl space", then look at things like foundations, utility lines, framing, etc. to see who is responsible for these items. In addition, in condos the unit owners rarely own the ground underneath the buildings and I'd expect that to be the case here (this can be different in townhome-style communities).

TL/DR: everybody does things differently. I suggest reading your governing docs in their entirety since relevant language can pop up where you wouldn't expect it. Next would involve reading your HO6 policy and/or contacting your insurance agent to see what if anything your policy may cover. It can be easier to allow your insurer and the association's insurer to sort this out, but this will depend in part on whether both parties are involved in the repair.

I hope some of this is helpful - sometimes just knowing what questions to ask is good enough to start with.

AnneS6 (Utah)
Posts: 10

Posted:

Thanks for the info - I'm definitely new to all this. The HOA manager threw it to the board to decide what to do and I'm not sure we're legally equipped to make this decision. I'm hoping they replaced the flashing boot with a good one like you mention. I was told they don't think there is any mold, but I don't know how far they looked. I think the cost is very excessive, too.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By AnneS6 on 01/14/2023 8:19 AM
Thanks for the info - I'm definitely new to all this. The HOA manager threw it to the board to decide what to do and I'm not sure we're legally equipped to make this decision. I'm hoping they replaced the flashing boot with a good one like you mention. I was told they don't think there is any mold, but I don't know how far they looked. I think the cost is very excessive, too.

wait they only replaced one boot? hire a new company to replace them all with double metal boots. I'm assuming every condo roof is same age and probably needs the same maintenance sooner or latter.

vis ta vie

AnneS6 (Utah)
Posts: 10

Posted:

I love info dumps, so thank you! I live in Utah, were it seems like the protections are always for the big guys and never the little guys.

The HOA manager is saying the space damaged is not a common or limited area, so it's mine to take care of. But the CCRs do not define what this space is. It does mention that driveways and balconies are limited common areas.

That's a great idea to look at the HOA insurance policy, thank you! I'll find out about that.

I listed what was damaged in the original post, but I had a lot of text. This is the damage that was officially reported by a restoration company:

The damage assessed is: "Moisture is coming in from the roof through a vertical termination that is broken allowing water to travel down the PVC pipe into the attic space. Affected material is blown in insulation in the attic space, framing, and ceiling sheetrock. This is a Category 3 loss due to the source being from wind driven rain."

As for the term crawl space - it seems like most people use it to define the space under a building. In my area and according to Merriam-Webster, it can also refer to the space underneath the roof and between the ceiling - so I'm really meaning what it seems more people call the attic space. It's the attic space that got damaged and just a tiny bit of my ceiling.

So far, this is the closest to what I've found that could maybe refer to the attic space (it's hard not to say crawl space like I've been doing my whole life). It says these things are common areas: all foundations, roofs, columns, girders, beams, supports, exterior walls and surfaces (excluding windows and window frames and doors and door frames), gutters, downspouts, soffit, and fascia of any buildings in the Condominium Project;

I have pictures of the area, and it looks like the space was framed and built to hold the roof up. I mean something obviously needs to be holding the roof up everywhere, so I'm not sure it means anything, but, maybe it does in this case?

Your post has definitely been helpful, thank you!! I'll read the CCRs again and see what else I can find.

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By AnneS6 on 01/13/2023 9:23 PM
Hi,

Who is responsible for the damage?

This is what the CCRs state about the Common areas:

(h)everything included within the Condominium Project, excluding the individual Units,

The quoted passage says that anything outside of your unit is common area. This is the key provision and it is very typical in condos.

So you need to find the definition of a unit with unit boundaries. I would start with the written description of a unit, but in some cases you may need to look at diagrams in the plat. That definition of a unit will probably refer to the ceiling as a boundary, which means that the attic crawlspace is above and outside of the boundaries of your unit and is therefore common area.

Can you quote the definition of unit here? Sometimes a unit will include the ceiling sheetrock and sometimes not.

The attic is not Limited Common Area, because it is not specifically designated as such, since you said it is not mentioned.

The association is responsible to repair the common areas. If the attic crawlspace is above your unit boundary, then the association is responsible. If the ceiling sheetrock is above your unit boundary, then the association is responsible to repair the sheetrock as well.

Did anyone make an insurance claim?

TimB4 (Tennessee)
Posts: 21,062

Posted:

I would think that the drywall would be your responsibility (expecting no negligence on part of the Association).

The roof, vent pipe, boot and insulation would be the Associations.

KerryL1 (California)
Posts: 14,550

Posted:

In our condo building, the HOA must fix the common area equipment and, per our insurance, which is "bare walls," owners repair anything beyond the sheetrock. The HOA would repair the sheetrock.

Agree with Jeff to look up "Unit" in your covenants (declaration, CC&Rs), which might state this attic or crawl space. In Ca, a Condominium Plan must be filed with the state before the bailing can open. Our condo plan shows every nook & cranny, so may your Condo plan shows that area.

Meanwhile, since a lot of these areas' pipes are cracked or broken, your HOA should fix them. Funds are in your reserves account for that, right?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Anne

Typically the place to begin is by opening a claim with your insurance company. Let them duke it out (subrogate) with the association's insurance agency.

MaxB4
Posts: 3,513

Posted:

A condo's master insurance policy typically will have a deductible of $5K, whereas a homeowner's policy will have a deductible of $500.00.

The $4000.00 I used was just an illustration as to how much it actually cost each homeowner. The smaller number of units the greater the pain. This is NOT a reserve expense, this would come out of a maintenance or repair account from the annual operating account. Therefore, the cost would be 1/20th for each homeowner, one way or the other.

KerryL1 (California)
Posts: 14,550

Posted:

Our condo building's reserve study has repairs or replacement to piping in the common areas as a reserve component.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By AnneS6 on 01/13/2023 10:40 PM
One more thought: If the HOA does send a bill to everyone, they will need a justification from the HOA and CCRs that supports the bill. And individuals, like me, want a justification from the HOA and CCRs that the individual is responsible for the entire bill. This is what I'm trying to figure out, the justification for either result.

Just to be clear, the association would either pay the money out of existing funds, or if needed, create a special assessment following whatever process is defined in your governing docs and local/state laws for that.

Escaped former treasurer and director of a self managed association.

AnneS6 (Utah)
Posts: 10

Posted:

Yes, they only replaced the one that was causing the leak I could see. They needed approval from the HOA manager before they did the rest. The HOA manager is having us approve that before the replace the others. I'll ask what they replaced it with. Thank you!

AnneS6 (Utah)
Posts: 10

Posted:

Quote:

Posted By JeffT2 on 01/14/2023 9:12 AM

I found the definition of the unit and will paste it in below. Thanks for pointing that out.

No one has made an insurance claim yet or even suggested it. This is the first place I've owned and the first damage to happen to it.

"Unit" shall mean and refer to a separate physical part of the Property intended for independent use, consisting of rooms or spaces located in a building. Units are shown on the Plat. Mechanical equipment, ducts, pipes, and appurtenances located within any one Unit or located without said Unit but designated and designed to serve only the Unit, such as appliances, electrical receptacles and outlets, air conditioning compressors and other air conditioning apparatus, fixtures and the like, shall be considered part of the Unit. Unit includes all decorated interiors, wallboard and drywall, surfaces of interior structural walls, floors and ceilings, windows and window frames, doors and door frames, and trim, consisting of inter alia and as appropriate, wallpaper, paint, flooring, carpeting, and tile. All pipes, wires, conduits, or other public utility lines or installations constituting a part of the Unit and serving only the Unit, and any structural members or any other property of any kind, including fixtures and appliances within any Unit, which are removable without jeopardizing the soundness, safety, or usefulness of the remainder of the building within which the Unit is situated shall be considered part of the Unit. For Units with an assigned garage, the garage shall be part of that Unit. Except where the context specifically requires otherwise, reference to a Unit shall include reference to the Allocated Interest in the Common Area appurtenant to such Unit.

AnneS6 (Utah)
Posts: 10

Posted:

Quote:

Posted By TimB4 on 01/14/2023 10:04 AM
I would think that the drywall would be your responsibility (expecting no negligence on part of the Association).

The roof, vent pipe, boot and insulation would be the Associations.

I completely agree the drywall is my responsibility, and that seems clear. It was also what I've been expecting since I moved into this place. It's the attic space that I'm having a hard time understanding how that is my responsibility as well. Thanks for your input!

AnneS6 (Utah)
Posts: 10

Posted:

Quote:

Posted By JohnC46 on 01/14/2023 11:23 AM
Anne

Typically the place to begin is by opening a claim with your insurance company. Let them duke it out (subrogate) with the association's insurance agency.

That's a great idea, thank you. Insurance hasn't been mentioned, it just kind of went straight to who is responsible for this and I was told it was my responsibility. I didn't want to place an insurance claim with the HOA saying I need to pay for it as I wasn't sure how that would work to have me fix and pay for it and then try to retroactively get the HOA take responsibility and pay me back.

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By AnneS6 on 01/14/2023 3:21 PM

I found the definition of the unit and will paste it in below. Thanks for pointing that out.

No one has made an insurance claim yet or even suggested it. This is the first place I've owned and the first damage to happen to it.

"Unit" shall mean and refer to a separate physical part of the Property intended for independent use, consisting of rooms or spaces located in a building. Units are shown on the Plat. Mechanical equipment, ducts, pipes, and appurtenances located within any one Unit or located without said Unit but designated and designed to serve only the Unit, such as appliances, electrical receptacles and outlets, air conditioning compressors and other air conditioning apparatus, fixtures and the like, shall be considered part of the Unit. Unit includes all decorated interiors, wallboard and drywall, surfaces of interior structural walls, floors and ceilings, windows and window frames, doors and door frames, and trim, consisting of inter alia and as appropriate, wallpaper, paint, flooring, carpeting, and tile. All pipes, wires, conduits, or other public utility lines or installations constituting a part of the Unit and serving only the Unit, and any structural members or any other property of any kind, including fixtures and appliances within any Unit, which are removable without jeopardizing the soundness, safety, or usefulness of the remainder of the building within which the Unit is situated shall be considered part of the Unit. For Units with an assigned garage, the garage shall be part of that Unit. Except where the context specifically requires otherwise, reference to a Unit shall include reference to the Allocated Interest in the Common Area appurtenant to such Unit.

This is very good, because the attic crawl space is not mentioned, which means that it is not part of your unit and is therefore a common area that is maintained by the owners association, not you. Of course, you need to check the plat to be sure your unit does not include the attic.

Condominiums are basically units and common area, and not much else. If something is not part of your unit, then it must be a common area by definition.

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