So far this winter, the Denver area has experienced mostly unseasonably warm weather, which has spared us from the usual flurry of snowflakes and frozen pipe claims.  But as we all know, Colorado weather is a fickle thing and a cold snap can strike at any time.  When the temperatures plummet, a common (and often substantial) problem facing condominium (and some townhome) community associations is frozen pipes and the resulting water leaks.  When that happens, there is often a lot of confusion and finger pointing over who is responsible for repairs, damages, insurance, etc.

Who is responsible for maintenance?
Generally speaking, owners are responsible for maintaining anything within the unit boundaries, and the association is responsible for maintaining the common elements and limited common elements lying outside the unit.  However, every set of covenants includes different language and allocations.  One should never assume that the allocation of maintenance or the responsibility for water losses follow these generally assumed parameters.

Take the example of a pipe within a unit that serves only that unit (call it Unit A).  This pipe freezes, breaks, leaks and causes water damage to Unit B and/or common elements.  Per the declaration, the owner is responsible for the maintenance of the pipe, so the owner of Unit A bears the expense for repairing the pipe within Unit A and any damage to property within Unit A.  Nevertheless, that does not mean the owner of Unit A must pay to repair or restore damaged property in Unit B and/or the common elements unless the declaration for the condominium association assigns that liability to the owner of Unit A or, absent that, unless the owner of Unit A was negligent.  (For a detailed analysis of how a negligence claim is made in this situation above, please see our December 2010 newsletter article, “Negligence?” for a detailed analysis of how a negligence claim made in the situation above should be analyzed).

What if the leak was caused by negligence?
The law provides that the occurrence of an accident does not raise any presumption of negligence on the part of either party.  An unforeseeable failure of a pipe or connection is not sufficient to support a finding of negligence.  Therefore, following the example above, the condominium association would be responsible for any repairs to common elements for which it had the maintenance obligation, and the owner of Unit B would be responsible for the repair and restoration of any property in Unit B for which that owner had a maintenance obligation, even though the damage originated from Unit A.  Thus, maintenance cost tracks or follows the maintenance responsibility in the absence of negligence.

On the other hand, if there were signs or warnings of an approaching break (such as the owner of Unit A knowing the weather was going to turn cold and leaving the unit unheated), the conclusion may be different.  This is where a fact-intensive investigation is necessary if anyone intends to reallocate the maintenance responsibility.

Who has a duty to insure?
To add to the complexity, the maintenance obligations of an owner and the condominium association may be irrelevant, depending on the owner’s and association’s duty to insure.  Often, the condominium association is obligated to insure the common elements and the interior of the units.  If so, when there is an insurable loss to the interior of a unit, the association must file a claim with its insurance carrier to cover the losses.

In addition, the owner should also file a claim against his or her own HO-6 policy to cover any damage to the owner’s personal property or other property not covered by the condominium association’s insurance.  Finally, the condominium association must analyze who is responsible for paying the insurance deductible.  Some HO-6 policies will cover the deductible.

Since these kinds of problems are often complicated, it is advisable to seek legal counsel to help you navigate the maze of insurance and maintenance obligations.  Please call us at 303.432.999 if you have questions about a maintenance obligation analysis.

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