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Do We Finally Have an Answer to the Age Old Question: Is the Association liable for damages to a unit when the roof leaks?

(maybe...)

By Steven S. Weil, Esq.
Published: May 2019

The facts in this LA case, Sands v Walnut Gardens Condominium Association, are simple. Pipes on the common area roof leaked causing water damage to the owner's unit. According to the manager's trial testimony the Association performed no preventative maintenance even though it would have been desirable; he said the roof and pipe had not been inspected or maintained in years. The CC&Rs required the Association to maintain the project “in first class condition”.

After presentation of the evidence but before the case was submitted to the jury, the Association filed a “non suit” motion. It basically said the case should be dismissed even if all the evidence presented was true because that evidence failed to show there was a breach of contract or negligence. While the trial court granted the motion, the appellate court reversed. It suggested that the utter failure to inspect or maintain might have been enough for a jury to conclude (and without expert testimony) that the Association breached the CC&R “contract” requiring maintenance to a first class condition standard.

On the other hand, dismissal of the negligence claim was upheld by the appellate court. It said that the Association had no independent duty as to the roofs and pipes outside the CC&Rs.

There is much we don't know: what if the Association had done an outstanding job of regular inspections and maintenance but the pipe broke anyway? Would that have been a CC&R breach? In other words, is the first class condition requirement a warranty that damage will never occur inside a unit? And, while the Court indicated there is no independent basis to hold the Association liable for damages apart from the CC&Rs, what about the basic rule of premises liability: that an association has a duty to use reasonable care to protect people and property from foreseeable risks of injury?

It's a frustrating court opinion. Here are its lessons: (1) determine whether or not the CC&Rs require “maintenance” or “maintenance to first class condition” and if the latter, recognize that this case creates a higher risk of exposure than would otherwise be the case; (2) regularly maintain (and document that maintenance) common and other areas which are the association's responsibility and take reasonable steps to avoid damage to real or personal property in project buildings.

So, no, ultimately, there is still no simple answer to the age old question but here are some “lookouts” for any claim against management or an association for damage emanating from common area or Association maintained components:

  • A little maintenance is far superior to no maintenance at all
  • Create an annual and sensible maintenance schedule
  • Review insurance policies to determine coverage for “breach of contract”
  • Respond quickly to complaints!

And, don't hesitate to contact legal or technical experts for help…

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