FROZEN PIPES AND FINGER POINTING

Given the sub-zero temperatures over this past weekend, we are getting many questions regarding who is responsible for water damage caused by the bursting of frozen pipes. To assist you, we are re-publishing our Altitude Community Education Newsletter of December 2018, entitled “Frozen Pipes and Finger Pointing.”  This article will give you a step-by-step analysis of how to approach responsibility for frozen pipes and resulting damage.

A wise person once said: “Never make snow angels in a dog park”. That is good advice.

Another piece of good advice is to be prepared, this winter season, for frozen pipes and finger-pointing. When the temperatures plummet, condominiums and townhomes often experience frozen pipes and resulting water leaks.  When that happens, everyone starts pointing fingers.

Below is a step-by-step analysis of how to approach responsibility for frozen pipes and resulting damage:

1. Stop the Flood

First and foremost, take the steps necessary to stop the flooding. Usually this is not a problem if someone is residing in the unit. In those cases the owner already knows of the flooding, or can be easily contacted to take the appropriate steps. However, often the reason why a pipe freezes is because a unit is vacant, and the owner has failed to keep the heat on.  If the unit is vacant, and the association cannot obtain a quick response from the homeowner, do what is necessary to enter the unit to stop the flooding.

Most declarations include language allowing entry by the association to perform maintenance and repair obligations, or in other emergency circumstances. But even if the declaration is silent in this respect, it is still in the best interest of the association to enter the unit to address a flood situation immediately.  Keep in mind that you should only do what is necessary to stop the flooding. Do not take any other action than what is necessary to stop the flooding, as doing more than necessary could expose the entering party to liability.

In addition, don’t let the uncertainty of who is responsible for repairing the pipe or resulting water damage stop you from stopping the flood. We realize that the source of the flood might not be immediately known, as pipes are often behind walls or in other inaccessible areas.  It is better to move forward with the repair without being absolutely certain of the association’s responsibility, then to take zero action.  You can always determine responsibility at a later point, when the urgency has subsided.

If, on the other hand, you fail to take action because you are uncertain of the association’s responsibility, and later it turns out the association was, in fact, responsible, the association might be on the hook for a lot more than just the ruptured pipe. If the association’s delay in actions allowed additional water damage to occur, the association will likely be held liable for such additional damage.

Lastly, while a declaration might contain a clear provision holding the association responsible for common element repairs, it might also contain an additional, not-so-obvious provision, requiring the association to prevent damage to other units.  If you don’t take swift action to address the flood, you may be shirking this duty.

2. Evaluate the Damage

The next step (and this usually occurs in conjunction with the first step) is to figure out which pipes burst and what property was damaged. This is for the purpose of evaluating the scope of necessary repairs. This is not for dictating responsibility for those repairs.

One thing you should not assume is that the party responsible for the source of the water break (i.e. the frozen pipe) is the party responsible for repairing the resulting damage. Unless additional facts are present, or the declaration imposes strict liability on a party to repair not only the pipe under the party’s responsible but all damage caused by the failure of the pipe, the source of the water intrusion is irrelevant to the responsibility for the damage.

You should consult with an expert to examine the break and damage, and to determine the scope of necessary repairs. Do not simply reply on an owner’s statements or a board member’s quick review of the situation. It is better to get a plumber, engineer, or other such expert to evaluate and provide a written report of its findings.

Additionally, documenting the extent of damage and estimated cost of repairs is particularly relevant if you are filing a claim under the association’s insurance policy, which is discussed further below.

3. Review the Declaration

Once you know what needs repairing, the next step is to review your declaration (aka “covenants” or “CC&R”s) for the responsible party.  Generally speaking, owners are responsible for maintaining anything the unit and everything within the unit boundaries, and the association is responsible for maintaining the common elements.  However, every declaration is different so, again, make no assumptions. For example, just because a pipe is located outside the unit boundaries doesn’t mean that the association is responsible for its repairs. The declaration might hold the owner responsible for any pipes that serve the unit exclusively, regardless of whether the pipe is located inside or outside the unit boundaries.

Sometimes the declaration is ambiguous as to who is responsible for repairing any particular component. For example, the declaration might state that all pipes located inside the unit boundaries are the owner’s responsibility, but defines the boundaries as the perimeter walls, floors, and ceilings of the unit.  Does that mean the boundary starts at the studs or the paint?  Do the floor boundaries mean the subfloor or the carpet?

If any part of the declaration is ambiguous, the Board has the right to adopt reasonable definition of the ambiguous terms. However, given that the interpretation of maintenance responsibilities could have a much greater impact than other types of ambiguous interpretations, we encourage you to discuss with the association’s counsel.

4. See if Negligence or Insurance Shifts Responsibility for Expenses

At this point you have determined the party responsible for performing the repairs. However, two things could shift responsibility for paying for the repairs to the other party: (i) negligence, or (ii) insurance.

Negligence

In simplest terms, to be negligent is to act in some careless way that causes harm to another. For example, someone is not paying attention while backing out of his driveway and ends up hitting his neighbor’s mailbox. The driver’s negligence (i.e., careless driving) caused damage to the neighbor’s mailbox, resulting in the neighbor having to replace the mailbox.

When trying to determine whether someone was negligent in the association context, you need to ask the following four questions:

1. Duty—Did the person owe a legal duty?
2. Breach—Did that person breach his or her legal duty by acting or failing to act in a certain way?
3. Cause—Was it that person’s action or inaction that actually caused damage or injury?
4. Damages—Did a third party suffer damages as a result of the person’s action or inaction?

Applying the above analysis to a frozen pipe scenario, an owner might have a duty to maintain his/her unit and certain pipes per the declaration. The owner could breach this duty by failing to keep the heat on during the winter months, when the owner knows that in all likelihood the unit will be in freezing weather. If this failure then caused the owner’s pipes to freeze and burst, resulting in water intrusion and damage to a third party’s property then the third party has a claim of negligence against the owner.

A fact-intensive investigation is necessary to determine negligence. If, in fact, an owner’s negligent act or omission caused damage to the common elements, the association could hold the owner responsible for the cost of repairs. However, this does not mean the association need not perform the repairs. The association is still responsible for performing the repair work, but it now has the ability to hold the negligent owner responsible for the cost of repair.

Also, keep in mind that once you’ve determined an owner’s negligence caused the water damage in question, you cannot automatically charge back any costs incurred to an owner’s account without such charge-back authority in the declaration. Most declarations contain this authority, and many require you to follow a number of steps before charging back costs (including a hearing to determine negligence). Make sure you follow any and all procedures contained in the governing documents before charging costs back to a negligent owner.

Insurance

Another way that the responsibility for funding repairs could shift to another party is through insurance obligations. Keep in mind that maintenance and insurance obligations are independent of one another and might not overlap.  For example, more often than not a condominium association is required to insure both the common elements AND the units, even though it is only required to maintain the common elements.

Always make sure you review the insurance obligations of the declaration. If water damage was done to property that the association is required to insure, then the board should determine whether the cost of repairs exceeds the deductible on the association’s policy. If the cost of repairs exceeds the deductible, then the board should determine whether to file a claim if it is covered (as some types of water intrusion might be excluded under the policy) and, if so, use insurance proceeds to cover the repair.

If the cost of repairs is less than the deductible, then the party responsible for the cost of repairs will depend on the governing documents. Some declarations will allocate this cost to the party with the underlying maintenance/repair responsibility. Some might allocate the responsibility to the association. Others might be silent, in which case we would recommend you contact the association’s attorney to evaluate and provide you its recommendation.

Figuring out who is responsible for repairing water damage caused by frozen pipes or any other kind of water intrusion is often complicated. You should consult legal counsel if you need help navigating the maze of maintenance and insurance questions. Please contact an Altitude attorney at 303.432.9999 or [email protected].