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Leaking roof damages condo: Who pays?

Q. Our condominium building has been plagued with leaks over the years as a result of a poorly finished roof, inadequate flashing materials and missing waterproof membrane beneath the facade. Our unit suffered a massive leak in the middle of the living room ceiling just after we moved in over five years ago, and we were told by the then sitting condo board president that, unfortunately, the repairs would be our responsibility because the damage is in our unit, even though the damage was caused by the faulty roof above us.

Our insurance agent at the time also said they didn't cover damage due to leaks in the apartment, so we sucked it up and lived with it, and I patched up the hole myself once they repaired and flood tested the roof.

Now, I have been directing the condo board for the past year or so and have told a few people the same exact thing. However, our new management company has overseen some recent repairs due to leaks between apartments and inside walls and has noted that the walls and ceilings are the condo board's responsibility. Most of the major building leak issues have been fixed but we still see spots and minor leaks in the ceilings of various units during periods of wind-driven rain.

So, we need to figure out once and for all, who is responsible for repairing what within each unit.

A. The first step in analyzing this issue is determining who owns what in a condominium building. As a unit owner, as a general rule, you own the space from the finished walls, ceilings and floors, in. The association owns the land the building sits on and the structure, either as a common element or a limited common element.

Section 18.4(a) of the Illinois Condominium Property Act states a board of directors is responsible for maintaining, repairing and replacing the common elements. If the common element, whether it be the roof, flashing and/or roof membrane, is insufficient or deteriorated such that water is penetrating into the building, the board must repair the water infiltration as a common expense.

The issue then arises, who is responsible for damage caused within a unit as a result of a defect that is the responsibility of the association. Unfortunately, neither the condominium act or Illinois case law offers a definitive answer. By contrast, if the damage within a unit is caused by a water leak from another unit (failed hot water heater, leaky water line to a refrigerator), Section 9.1(a) of the act makes the owner of the unit that caused the damage responsible for all damages caused by the leak.

A 2002 federal case, the facts of which are based in Illinois, Kallman v. RadioShack Corp. (Seventh Circuit. 2002), established that any party that has the duty to repair or maintain all or part of a building is responsible for any damages caused by a failure to properly maintain or repair. Accordingly, the argument can be made by the innocent condo owner that the board had a duty to maintain the common elements, breached their duty by allowing the water penetration and is now responsible for the damages associated with that breach. See Keating vs. 68th and Paxton LLC, 401 Ill. App. 3d 456 (1st Dist. 2010).

There are other issues that will often come into play here, including, but not limited to, the language contained in the condominium declaration and the extent of the association's insurance coverage. Also, the condo owner will likely have insurance that may cover any losses. Ideally, in the event the association refuses to cover damages to the innocent party's personal property, the innocent owner's insurance company covers the loss and the two insurance companies battle to determine who is responsible for the loss.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tom@thomasresnicklaw.com or call (847) 359-8983.

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