Who is responsible for damage

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Latest post 10-28-2009 5:13 PM by kickit023. 12 replies.
  • 10-21-2009 1:48 PM

    • kickit023
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    Who is responsible for damage

    Recently our condo flooded and had a mold problem. The problem was caused because a pipe broke in the walls on the unit above us. The pipe is considered to be limited common area, as it is the drain pipe for all 3 units from the first floor to the third floor and therefore falls under the scope of the HOA's responsibility. The HOA has fixed and paid for the pipe and the damage done. We had mold, so the wall had to be torn out and replaced. Our carpet padding was replaced. The HOA board voted to replace the bookcase that was next to the wall because it developed a mold problem. In addition, it bled on the carpet. The board decided to try and get the carpets cleaned, so when the padding was replaced, the carpet in the living room where the damage was done was professionally cleaned. The stain did not come out, so the carpet is ruined. Now the HOA is considering not paying for the damage and replacment of the carpet. The CC&R's clearly state that the Association is responsible for the pipes that caused the flood and damage, shouldn't the Association then be responsible for returning the carpet to it's original state? Any comments appreciated as I am considering hiring an attorney to fight this if the board decides not to approve the replacement of the carpet.

  • 10-21-2009 2:09 PM In reply to

    • DPH
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    Re: Who is responsible for damage

    "Any comments appreciated as I am considering hiring an attorney to fight this if the board decides not to approve the replacement of the carpet."

    Do a cost benefit analysis on the cost of one room of carpet versus a $250-$300 per hour attorney trying to sue the HOA.  I'm not saying you shouldn't go after them, just do the math first. 

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • 10-21-2009 3:30 PM In reply to

    • kickit023
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    Re: Who is responsible for damage

    Good question. The bid for the carpets to be replaced, which was done with knowledge of the board and set up by the property manager comes to $1700.00. The thing to me is, the carpet is liveable, I can put the replaced bookcase back over the ruined carpet. However, with it being a condo and this being our first home, my wife, daughter, and I do not plan on staying there much longer, so there is the resell value. Thanks for input.

  • 10-21-2009 4:13 PM In reply to

    Re: Who is responsible for damage

    kickit023:
    The CC&R's clearly state that the Association is responsible for the pipes that caused the flood and damage, shouldn't the Association then be responsible for returning the carpet to it's original state?

    No.

    The CC&Rs might "clearly" state that the HOA is responsible for maintaining the pipes in the common areas (inside the walls that run between units) but the HOA is not legally responsible for the resulting damage to the "unit" unless the HOA was somehow negligent in maintaining the pipes in the walls. But there is no negligence when the pipes break with no warning and no notice to the HOA that there was a problem prior to breaking.

    You can re-read your CC&Rs and I'm guessing you'll find that the bookcase, the pad, and the carpet are all parts of the "unit". I'm also guessing that the HOA replaced the bookcase, pad, and cleaned the carpet as an accommodation (because the cost was a fraction of the total cost of all the repairs) without having any legal obligation to do so.

    And now that's it's faced with the much larger expense of replacing the carpet, it's saying no.

    kickit023:
    I am considering hiring an attorney to fight this if the board decides not to approve the replacement of the carpet.

    You'll be wasting your time and your money by hiring a lawyer because your HOA is not legally obligated to replace your carpet.

    However, if you have unitowners insurance, your carpet replacement is likely to be covered by your own policy.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 10-22-2009 12:39 AM In reply to

    • kickit023
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    Re: Who is responsible for damage

    Why would the Association pay to have everything put back to it's original state and even attempt to put the carpets back to its original state if they were not responsible? It states in the CC&R's that the Association is responsible for maintaining and managing limited common areas (the space between the walls). The cause of the pipe breaking was the builder's fault for not putting enough space for the pipe they ran through the studs to have room to shift, move, etc. So the stud actually pushed down on the pipe breaking it. I'm encouraging them to go after the builder for recoupment of the money paid out. However, if property owned by someone else damages property of another's, is not the owner of the property doing the damage liable? The HOA is obligated to replace the carpet if they are legally liable for the damage. They have basically admitted liability by trying to restore the carpet to its original state as well as replacing the section of the wall that was destroyed by mold and water damage and restoring it to its original state.

  • 10-22-2009 12:57 AM In reply to

    Re: Who is responsible for damage

    kickit023:
    Why would the Association pay to have everything put back to it's original state and even attempt to put the carpets back to its original state if they were not responsible?

    I wrote "as an accommodation". Didn't you catch that part?

    There is lots of precedent for that. Insurance companies routinely pay small claims that they are not legally obligated to pay. It's expedient and cheaper than fighting it.

    kickit023:
    It states in the CC&R's that the Association is responsible for maintaining and managing limited common areas (the space between the walls). The cause of the pipe breaking was the builder's fault for not putting enough space for the pipe they ran through the studs to have room to shift, move, etc. So the stud actually pushed down on the pipe breaking it.

    Then the builder could be responsible for a construction defect, not the HOA.

    kickit023:
    I'm encouraging them to go after the builder for recoupment of the money paid out.

    It's up to the HOA to decide if it wants to seek reimbursement for what it's already paid. But that doesn't legally obligate the HOA to pay any more money for your repairs.

    It's up to you as the damaged party to seek compensation from the responsible party (the builder). The HOA doesn't do it for you.

    kickit023:
    However, if property owned by someone else damages property of another's, is not the owner of the property doing the damage liable?

    Not unless that property owner was NEGLIGENT. I think I already touched on that.

    kickit023:
    The HOA is obligated to replace the carpet if they are legally liable for the damage.

    The HOA would be "legally liable" if the HOA was NEGLIGENT. There is no NEGLIGENCE on the part of the HOA.

    kickit023:
    They have basically admitted liability by trying to restore the carpet to its original state as well as replacing the section of the wall that was destroyed by mold and water damage and restoring it to its original state.

    No, they aren't admitting liability for anything by doing all that.

    "It's our fault that the pipe broke" is an admission of liability.

    "We will fix your damage" is NOT an admission of liability.

     You are interpreting stuff that just isn't there to interpret.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 10-22-2009 1:06 AM In reply to

    • kickit023
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    Re: Who is responsible for damage

    So, I think I'll wait for a response from someone who is a little more professional and a little less condescening. The grammar and spelling errors alone give me the sense you're not someone I really want to consider taking advice from. Thanks anyway.

  • 10-22-2009 1:22 AM In reply to

    Re: Who is responsible for damage

    kickit023:
    So, I think I'll wait for a response from someone who is a little more professional and a little less condescening.

    Wish I had a dollar for every time I got that kind of response from somebody I gave bad news to.

    kickit023:
    The grammar and spelling errors alone

    I'm not going to apologize for spelling and grammar errors from spending hours at a time typing responses in an effort to help people in trouble.

    kickit023:
    give me the sense you're not someone I really want to consider taking advice from.

    Let's see:

    35 years in the insurance business.

    9 of them as a property claims rep.

    Many, many hundreds of condo damage claims from unit owners and associations which included reading the CC&Rs for each claim.

    Yeah, you're right, you really shouldn't be taking advice from me.

    Good luck.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 10-22-2009 2:00 AM In reply to

    • kickit023
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    Re: Who is responsible for damage

    People skills...a lost art. I'll keep you posted on what happens. Cheers!

  • 10-22-2009 3:50 AM In reply to

    Re: Who is responsible for damage

    People who have to have the last word. It's epidemic.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 10-22-2009 9:18 AM In reply to

    Re: Who is responsible for damage

    kickit023:
    a little less condescening. The grammar and spelling errors alone

    I didn't see any spelling/grammar errors in any of the replies from AJ, however the OP might double-check their own spelling before throwing stones.

    OP might also consider the age of the existing carpet, and its pro-rated value before taking legal action. It's not like he's going to get brand new carpet to replace something that's, say, 5 years old.

    I also didn't see any mention from the OP as to whether they had unitowners coverage, either.

  • 10-22-2009 10:20 AM In reply to

    • kickit023
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    • Joined on 10-21-2009
    • UT
    • Posts 7

    Re: Who is responsible for damage

    According to an attorney on another site, "Usually the condo association is liable for the damages, with the exception of accidents caused by a unit owner. Plumbing is a common element that services more than one unit and if there is a leak in the plumbing the association must repair the plumbing and any damages." So, we'll see what happens.

  • 10-28-2009 5:13 PM In reply to

    • kickit023
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    • Joined on 10-21-2009
    • UT
    • Posts 7

    Re: Who is responsible for damage

    Update: The Board and Property Manager consulted the HOA's attorney and the HOA's insurance company. The attorney and insurance company agreed that the carpet must be replaced by the HOA if the damage was done by the property the HOA is responsible for. In this case, the pipes that caused it were the HOA's responsibility, therefore, the HOA must return the carpet to its original state. Since cleaning did not get it out, the carpet must be replaced and they are replacing it.

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