Sorting through fault in a water leak a messy issue
Q. Our condominium building was neither well constructed nor well insulated. As a result, almost every extended freeze and thaw, the building experiences pipe bursts causing extensive damage to units and the common elements. Our declaration is old and it is difficult for we board members to determine who is responsible for both fixing the damaged plumbing and/or repairing the damaged unit, common elements or personal property. Can you please provide us with some direction or steps we can take when these situations occur.
A. Water leaks, pipe bursts or other forms of water damage within condominiums or townhouses are one of the more common problems we are asked to address. Unfortunately, neither the Illinois Condominium Property Act nor many association declarations are very clear regarding responsibility for water damage and resulting repairs or replacements. We wish there was a black-and-white, cookie-cutter answer to these situations because they happen so frequently. Yet, virtually every water leak/burst pipe incident must be approached on a case-by-case basis.
That said, there are several simple steps the board or property manager can take to assist in the ultimate determination of responsibility for the damage repairs or replacements necessitated by the water damage:
1. Mitigate the ongoing water intrusion and identify the specific location of the pipe burst. Obviously, it is imperative to mitigate the extent of any water damage by knowing where the units’ water shut-off is located and also having a good relationship with a reliable, licensed and professional plumber to contact in the event of such an emergency. Moreover, it's important to ask the plumber to identify and document (either via pictures or reports) the precise location of the water leak or pipe burst and determine whether the pipe services one unit exclusively or more than one unit. In a condominium, if the broken pipe services one particular unit, it could be considered a Limited Common Element and, again, dependent upon the language of the Declaration, the pipe and damage repairs may belong to the unit owner. But it starts with knowing what, where and how the water leak originated.
2. Next, ask for a professional determination of the cause of the leak or pipe burst (if possible). During the initial emergency investigation into where the water leak originated, it's important to ask the association's plumber to identify or at least attempt to explain the reason for the water leak. As you can imagine, there are myriad possible causes for water leaks — it could be due to a unit owner failing to properly maintain the heat in the unit, or an appliance, toilet, sink or hot water heater may not have been adequately maintained or operated. With the severe temperatures, some pipe bursts may be considered “Acts of God” or accidents. Either way, it's important for the association's plumber to find the reason for the water leak.
3. Finally, Identify and designate the specific water damage. Generally, the “rule of thumb” is the association is responsible for the maintenance, repair and replacement of the common elements as defined in the Act and governing documents. Conversely, unit owners are typically responsible for repairs to damage within the boundaries of their unit. In the event a pipe burst or water leak is caused by an owner's negligence, then the ultimate responsibility for the damage may belong to that particular owner — again, there are many varying factors.
Ultimately, the association’s counsel should be able to review the governing documents and provide a legal opinion as to the repair or replacement responsibility for the pipe, the damage to the physical unit or common elements and/or damage to personal property.
Again, this is typically a case-by-case analysis of each water leak or pipe burst and differing language of governing documents. In the end, however, taking the above initial steps during the emergency response phase of a water leak or pipe burst will go a long way to assist the association’s counsel in allocating responsibility appropriately.
• Matthew Moodhe is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.