From personal experience, water intrusion in a condominium unit can be one of the most frustrating and unpleasant experiences a Co-owner may ever experience. Often, a Co-owner does not know what to do, who to call, whether insurance will cover the loss and what responsibilities the Co-owner and the Association may have. This article explores some common issues that may arise due to a sump pump failure, a burst water pipe, sewage backup, a water heater rupture, a leaking roof or a dripping wall and some practical recommendations on what to do.
Water Intrusion in a Condominium Unit: Gaining Access and Notifying the Association and the Property Manager
Water may enter a condominium unit through numerous sources. No matter the location of the source of water, the first issue step is to assess the situation and determine whether the appropriate individuals have access to the affected unit(s). Obviously, if the Co-owner is in the unit and provides permission, then access is not an issue. However, what happens if a Co-owner is a ‘snowbird’ and living in Florida or Arizona for the winter or is otherwise unavailable? Normally, the Association does not have the right to access a Co-owner’s unit without notice to the Co-owner. Whether the Association can ‘break’ into a unit depends on if the situation is an emergency or not.
If the water is an emergency situation, the Association may gain access to the unit without notice to the Co-owner. This makes logical sense because stopping the damage and mitigating any additional damages may prevent waste, damage to the common elements or damage to nearby units. On the other hand, if the situation is not an emergency, then the Association needs to provide notice to the Co-owner before gaining access to the unit. Under most circumstances, if there is water in a unit, the Co-owner and/or Association should react immediately and gain access to a unit to stop further damage. A more thorough article regarding accessing a unit may be found on our website titled Access Denied! … Or is it? The Condominium Association’s Right to Request Entry to a Unit to Inspect for Default.
- The Co-owner should notify the Association’s Board of Directors and the property management company of the water problem. Most property management companies have an emergency telephone line on nights and weekends.
- If the Co-owner is unable to reach the Board or the property management company, the Co-owner may want to call the Association’s plumber, if known, and give him or her a ‘heads up’ of the problem. This is especially important if the location of the water damage is from a common element that is the responsibility of the Association to maintain.
- If the Co-owner is away and the Association locates the water damage, the Association should notify the property management company and/or the plumber immediately.
- If the Co-owner or Association can move personal property items away from the affected area, they should endeavor to do so.
- If at all possible, any damaged items should be photographed and maintained for an insurance adjuster. In addition, a log of the original cost of the items and/or the current fair market price for the items before and after the damage will need to be created. Michigan courts require that a Plaintiff prove the amount of damages and documents and proof are a good first step.
- There are certain circumstances when keeping the damaged items is inappropriate, such as in the situation of a sewage backup where raw sewage has damaged personal property items, such as cloths, cloth chairs, food, etc. Under such circumstances, most items go straight to the dumpster or curb due to their toxic nature. The Co-owner and/or Association should attempt to keep track of everything lost.
- Often times and in addition to a plumber, the Association may call a remediation company to take control of the situation, especially when multiple units are affected. After the call, the remediation company typically sends a crew to assess the loss and identify the extent of the damage. First, the company may bring long hoses to extract water from the unit. Second, the company will clean the affected area. Third, the company will dry the affected area with large industrial size fans and/or dehumidifiers. The drying process may take a few days so expect a low ‘humming’ noise in your unit for the time being. Fourth, if the property is to be restored, often the remediation company will also provide restoration work, if desirable.
- Once the unit is cleaned and dried, the company will return a few days later to remove the large fans and dehumidifiers. Co-owners and the Association should work cooperatively with the remediation company including making sure the company has access to remove the fans or dehumidifiers.
Review Your Master Deed and Bylaws and Check Your Insurance Coverage
Most often, the cause of the water damage is readily apparent. However, in some circumstances, the source of the water damage may be difficult to ascertain. If the source of the water incursion is not readily identifiable, the Co-owner or Association may ask the plumber or the remediation company where the source of the water originated. If the plumber or remediation company cannot determine the source of the problem, a civil engineer may be required. Contemporaneous with locating the source of the water damage, the Co-owner or Association should review the Condominium’s Master Deed and Bylaws to determine who is responsible for the damage(s). Typically, Article IV of the Condominium Bylaws will contain Insurance Requirements and Article V will address Reconstruction or Repair in Case of Casualty. By far, these are the two most important provisions, however related provisions in the Condominium Documents may also be relevant so a thorough review is important.
To be safe, a Co-owner should be proactive and file a claim with the Co-owner’s insurance carrier as soon as possible. Typically, the mortgage company for the Co-owner require the Co-owner to carry a “HO-06” policy, which is similar to a regular homeowner’s policy, but for a condominium unit. Thus, most often the Co-owner will look to the Co-owner’s own insurance policy first. However, if the damage stems from the common elements, which are the responsibility of the Association, then a claim should also be made to the Association’s carrier. While it differs from condominium to condominium, the Association’s insurance policy typically covers the condominium’s structure, exterior parts and shared spaces.
Work Cooperatively with the Association, Property Manager or Insurance Carrier
It is important to work cooperatively with the Association, Property Manager or any insurance carriers involved. If the Association is responsible for making any repairs, the Co-owner should not make any modifications or repairs without the Association’s express authority or permission.
In Bishop v Westchester Place Assoc., unpublished per curiam opinion of the Court of Appeals, July 15, 2014 (Docket No. 313239), ice dams on the condominium’s roof caused leaks into a Co-owner’s attic and water damage in the condominium’s foyer. The Co-owner, Bishop, notified the Association who then obtained three repair estimates. The Association was dissatisfied with these estimates and attempted to obtain additional quotes. In the meantime, winter storms caused further damage to the roof and additional leaking through the attic and into Bishop’s unit. Bishop wearied of the delay, engaged a contractor, and paid for the repairs himself. He then filed suit for declaratory judgment, essentially seeking a ruling that the Association was responsible for the repair costs.
The Association filed a counter suit to force Bishop’s compliance with the Condominium’s Bylaws and for costs and attorney fees. Ultimately, the Court decided that Bishop was not entitled to make repairs to the common elements without the Association’s authority and his repairs were therefore a Bylaw violation. The moral from this case is that a Co-owner should repair or replace only those areas where the Co-owner is responsible and if the Co-owner wants to make repairs to common elements, the Co-owner must either 1) obtain the Association’s approval before making the repairs or 2) file a lawsuit to compel the Association to make the necessary repairs.
In Genna v. Jackson, ___ Mich App ___; ___ NW2d ___ (2009), published opinion of the Michigan Court of Appeals (Docket No. 285746), a Co-owner went to Florida during the winter. During her time in Florida, the Co-owner’s hot water heater erupted and mold formed throughout her condominium unit. Next door, the Co-owners began to experience flu-like symptoms including diarrhea, vomiting, congestion and nosebleeds eventually forcing them to move out. A jury awarded $303,260 in damages against the offending Co-owner and the Court of Appeals affirmed that decision. Mold, structural damage, personal property damage and making another Co-owner’s unit uninhabitable could lead to massive potential liability. If you are a ‘snowbird’ it may behoove you to find someone local to check on your unit every so often.
Consider Legal Options
If the damage is due to a neighbor’s actions, inactions or negligence or due to the Association’s failure to maintain the common elements, then litigation may become necessary. The Co-owner or Association should retain competent legal counsel in the area of condominium law, especially someone who understands the interplay of responsibilities contained in the Condominium Documents and provisions of the insurance policies. While a lawsuit is often the last remedy, there are times when no one will take responsibility for the damage(s) and the Association or Co-owner(s) need to protect their interests.
The Co-owner or Association should provide ample information to the attorney regarding the amount of damages claimed. Although mathematical precision is not required, a plaintiff bears the burden of proving the amount of damages with reasonable certainty. Hofman v ACIA, 211 Mich App 55, 108; 535 NW2d 529 (1995). There is no fixed rule for measuring compensation for damages to personal property; however, proof of the amount of damages may not be founded on speculation or conjecture. Strzelecki v Blaser’s Lakeside Ind’s of Rice Lake, Inc, 133 Mich App 191, 196-197; 348 NW2d 311 (1984). Thus, the Michigan Court of Appeals has held in Hering v. Wildwood Condominium Assoc., unpublished opinion per curiam of the Court of Appeals, April 25, 1997, (Docket No. 187514) the following:
Here, the only evidence introduced was three photographs which depicted a small portion of the furniture allegedly damaged. Because this was insufficient to provide the jury with a reasonable basis for computation of the value of plaintiff’s furniture, the jury was forced to impermissibly speculate as to the value. For example, there was no evidence introduced as to the original value or purchase price of the furniture, the market value before or after the damage and the like.
Therefore, the more information the Co-owner or Association can provide the attorney regarding the extent of the damages, the better. Water intrusion issues can cause significant issues for Co-owners and Associations alike. If you are faced with uncertainty or if you need competent legal representation, please contact our office.
Joe Wloszek is a Member of Hirzel Law, PLC where he focuses his practice on condominium and homeowner’s association law, commercial litigation, commercial real estate, large contractual disputes, and related real estate matters. Mr. Wloszek has been a Super Lawyers Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. He was also named a Top Lawyer in commercial law by DBusiness Magazine in 2014, a Michigan Top Lawyer in real estate law by Michigan Top Lawyers in 2016 and the Pro Bono Volunteer Attorney of the Year in 2014 by Michigan Community Resources. He is a Certified Real Estate Continuing Education Instructor through the State of Michigan and the past Chair of the Oakland County Bar Association Real Estate Committee. He can be reached at (248) 478-1800 or firstname.lastname@example.org.