« Regulating Human Behavior - What Can You Do? | Main | Surviving Each Other: the Art of Communication »
April 9, 2006
Slab Leaks - A "Muddy-Gray Area" To Be Sure
A reader wrote this to me: "We recently had a slab leak detected and repair in our condo unit and we thought this would be something that te association would be responsible for financially. The CC&R's and ByLaws do not mention anything specific to that other than the HOA is responsible for exterior maintenance, but one of the board members found a letter from 20 years ago where it states that at an annual meeting back then the members voted to make pumbling leaks under the slab a responsibility of the individual homeowner. We have purchased this unit recently and did not receive this document with our HOA documentation package. Other members also confirmed that they have never seen this letter as well. My question is: under common practice, are slab leaks responsibility of homeowners or HOA? And are letters like this valid or do they have to be amended to the CC&R's and Bylaws?"
At least one answer is easy to give. In California, and perhaps elsewhere but I am only speaking for California, an amendment to the CC&Rs is not effective until it is recorded with the County where the Association is located. A bylaws amendment is effective when it is approved by the members. Normally, an amendment that affects maintenance would not be made to the Bylaws but it has been known to be done. The CC&Rs generally contain the mainenance responsibilities though. That does not mean that an Association is hamstrung on identifying individual and HOA responsibilities if the documents contain no detail. With good legal assistance, a Board can approve a Matrix or list of responbilities to add clarification in situations where the documents do not contain much detail. A fair amount of detail can be provided by a review of the definitions related to ownership, and the general responsibilities as stated. Any policy related to maintenance that is adopted to provide more detail must not be in conflict with the governing documents, and the authority to adopt the policy or rules must be present, but the Board is not usually limited to restating the generalities in the document in defining maintenance responsibilities. Another factor is California law. In Civil Code Section 1364, the law says in a condo, the HOA is responsible for maintaining the Common Area except for exclusive use common area, unless the Declaration (CC&Rs) otherwise provides, and that in a PD (planned development), the Owner is responsible to mainain their Lot unless the Declaration (CC&Rs )otherwise provides. Taken together, a good attorney can come up with a failry detailed interpretation of responsibilities. It is not very easy for a board member or manager to do it.
However, here is where it gets more complicated. The words "exclusive use common area" have legal significance. Someone might argue that the slab in any given condo is exclusive use common area. However, that argument is weakened considerably if the CC&Rs say the plumbing pipes that are in the Common Area are the HOA's responsibility.
So I would have to say that for a slab leak, in a condo, unless the CC&Rs say something different, it most likely would be the responsibility of the Association to fix a slab leak because the slab is part of the building, and the buildings are usually owned by all unit owners as tenants in common, and thus, all of the building components are characterized as Common Area. And given that Owners generally own only the "airspace" from the walls inward in a condo, this strenghtens the argument that the HOA would be responsible for the plumbing pipes and the slab repairs. The Association normally maintains the Common Area. It is different in a situation where the Owners own "a Lot " instead of airspace. Then the answer could be just the opposite, unless the pipes are common pipes and serve more than one Lot. However, there are all kinds of machinations in documents and this is not to be construed as legal advice, but simply as general information about the analysis of such a question.
Other factors that confuse matters: even if the HOA is responsible to repair the pipes and the slab, owners generally think the HOA is responsible to repair everything in their Unit as well, like the carpetting, walls, baseboards, couches, personal items, etc. How far the Association responsibility extends depends again on the document language, any policies that are valid, and to add two other elements, insurance responsibility and negligence considerations. I have to stop here - there is just so much to the inquiry and resolving a question like the above.
The amendment the above reader is talking about does not sound like a bona fide amendment to the CC&Rs or Bylaws, even though it may qualify as a policy adopted by the Owners. If it was intended as an amendment to the CC&Rs, a certification of it should have been recorded. The question as to what can be done about it now would best be referred to an attorney for advice. The point is amendments and interpretations can clarify and/or change things and then it becomes a question as to what the position is on those - i.e., whether the written "whatever it is" is legal and controls.
There are a number of articles and FYIs found on the condoguru website
Take this scenario: Tenant notices the carpet in the hall is a bit damp but supposes the cat missed the litter box. Tenant does not want to tell Owner as there might be repercussions, so mops the carpet up to clean up the "whatever it is." However, the dampness spreads and pretty soon it shows on the wall between the hall and living room. The new wood floor in the living room starts to buckle and the wall board shows dampness up 6-8 inches.
What happens? The HOA comes in and tears up a portion of the wood floor, and the carpet, and cuts out a portion of the wall and finds not only a slab leak but mold. It fixes the pipe and the slab, and then what?
The Owner demands the HOA pay for the repairs to the flooring, for new carpet (throughout the Unit where carpetting still exists) because the hall carpet cannot be matched, repairs to the wall, the outlets, the bookcases against the wall that got some dampness, the wallpaper that is coming up (for the whole room as the wallpaper cannot be matched), and the relocation of the tenant, plus mold remediation, including having everything in the Unit cleaned.
Everyone expects the Association will bear the entire brunt, even in a case like this where failure to report the leak exacerbated the entire situation and caused this situation to go from a $2500 fix to a $35,000 fix (or more).
This is when the fingers start pointing, and the documents including the association governing documents, the insurance policy, and historical records are pulled out, dredged up and dusted off. And it is long before this point that the question of a slab leak loses its simplicity and gets into that "sticky, moldy gray area", and the lawyers are called in to make something meaninful out of the muddy (literally) mess. That is when the matter can go from a $35,000 expense to a $100,000 expense (or more!).
See how it works?
It is for this reason that attorneys like myself, who would like to, to the extent possible, head off these kind of disputes, suggest beefed up language about responsibility for failure to report leaks, shared responsibility for repairs and protection for the Association against having to repair expensive upgrades that are damaged by leaks that are sometimes very predictable (such as in buildings with old pipes, old roofs, faulty construction, etc.) What Owners want is to be made whole when there is an incident like this. What Associations want is to be told when there is any sign of a leak in something that might lead to bigger problems, like the roof, a window, or a slab. Even if the HOA is not responsible for the slab or the pipe or the leak, it should when it finds out about such a problem do what it can to document the situation, the cause, and the repairs. Why? Because it is incumbent on an HOA, even in a Planned Development, to take action to require Owners to fix their own Lots (incuding the home that is attached to a neighbor's home). Water leaks cannot be ignored. The question is, when all is said and done, who pays? I cannot give a pat answer to this, but perhaps after reading this, you are a little wiser about what NOT to do, which is ignore, finger point, and refuse to do your part in getting things fixed. People can argue about the costs till doomsday, but it makes more sense to be arguing about $5000 or less, rather than $100,000 or more.
Go visit the Guru for more http://californiacondoguru.com.
Posted by Beth Grimm at April 9, 2006 6:31 PM