A hose supplying water to your icemaker breaks while you are away. For two days, water slowly escapes and saturates the carpeted floors and drywall surrounding the icemaker. Even worse, the water continues to travel through the condominium walls into the unit next door and the unit below resulting in damage to them, including furniture.
No condominium is immune from these random occurrences of water intrusion. It is said that leaky pipes and faulty plumbing are the leading source of condominium property loss. In addition to property damage, water leaks can cause mold, which in turn can trigger health problems. The best way to avoid these problems is through preventative maintenance. Still, who is responsible when water gets loose and causes damage? Is it the Association, the unit owner, or both? The short answer is: it depends.
Generally, in both Alabama and Florida, the Association has the responsibility to maintain, repair and replace the common elements1. The duty to maintain the common elements might include making changes and modifications to protect them. Failure to carry out that responsibility may result in an action against the Association. In contrast, a unit owner is typically responsible for the maintenance and repair of his unit (i.e. private elements).
Equally important, though, are the condominium’s governing documents: the Declaration of Condominium, Bylaws, Articles of Incorporation and, if applicable, Rules and Regulations. Quite often, a condominium’s governing documents will detail additional responsibilities regarding maintenance and the liability of the Association and/or unit owners for damage to the condominium property. Moreover, the governing documents may particularize the specific building components for which the owner or Association is responsible. Indeed, a Declaration of Condominium may be very helpful in distinguishing between a condominium’s common elements and private elements, which is crucial to the allocation of liability and repair responsibility. Absent evidence of negligence, recklessness, or willful conduct on behalf of the unit owner in causing a water leak, it just might be that the Declaration of Condominium does not require a unit owner to repair damage to units below or furniture within them.
With the foregoing in mind, the Condominium Association will need to determine the origin of the problem because it is not automatically responsible for “any” water damage to a condominium unit - and neither is the owner. The primary issue is usually whether the source of the water damage is located within a common element or a private element. Once the source is determined, the next issue to be resolved is typically whether the water escaped as a result of the negligence of the Association or unit owner. Negligence has many faces. For instance, the Association may be negligent in failing to
1 Alabama Condominiums created before January 1, 1991, are governed by Code of Alabama, § 35-8-109 which provides that the Association may maintain, repair and replace the common elements. Alabama Condominiums created after January 1, 1991, are governed by Code of Alabama § 35-8A- 307 while Florida Condominiums are governed by the Florida Condominium Act, Florida Statues, § 718.113; both statutes make maintenance and repair of the common elements the Association’s responsibility.
properly maintain water pipes that are common elements. Likewise, a unit owner may fail to properly maintain water hoses that serve his washing machine or icemaker. Even clearer, the intentional act of an owner may lead to water intrusion. Of course, the escaped water may not be the result of any negligence. Things happen: even with proper maintenance equipment wears over time, as do pipes and hoses. Every situation is different.
Generally, if the Association or unit owner has caused the water to escape through negligence, that party will be responsible for the resulting damage. Collectively, the applicable Condominium Act, the condominium’s governing documents, and the State’s negligence laws will ultimately determine whether a party is liable for the damage and the extent to which one is responsible for repairs.
By establishing a formal water damage prevention program, the Condominium Association can take an active role in minimizing the chance of water damage.
The Association and unit owners should commit to perform periodic inspections of all appliances connected to water and drainage lines. Licensed plumbers should conduct inspections when appliances are installed, and only licensed plumbers should perform necessary maintenance and repairs to those appliances. One idea is to standardize the inspection process by using a three-part checklist with a copy going to the unit owner, one to the Association, and one for the plumber’s records. The checklist would note any defects and suggest necessary repairs with the unit owner, allowing a reasonable time to correct the deficiency.
Catching leaks and repairing them efficiently will help to avoid the large costs associated with repairs to your damaged unit. The safest and easiest plan is to turn off your main water valve every time you leave your unit unoccupied, whether it is for five days or five months. Whatever you do, be proactive. Don’t wait for an accident to strike and wash away your precious funds.
Note: This article is for informational purposes only and is not intended to provide legal advice. Each case is different. If loose water results in extensive damage to your condominium or individual unit, consult an attorney for a legal opinion regarding responsibility for repairs.