By: Doug C. Shumway

For those of us that live in or work with a community association, whether it’s a condominium or a traditional P.U.D., sharing the responsibility for maintaining, repairing and replacing structural elements can be a headache—okay, maybe even a migraine. The most hotly debated question whenever there’s damage to an association’s building structure is: “Who’s responsible in paying for that?” Depending on what the association’s governing documents say, the path to finding the correct answer to this question can be fraught with peril.

The answer ultimately depends on what the governing documents (“CC&Rs”) say, and—more specifically—how “common elements” are defined. Associations are most often responsible to pay for damage to the common elements, whereas owners are responsible to repair and maintain everything else. While most CC&Rs attempt to draw a clear line between where the association’s liability ends and the owner’s responsibility begins, many CC&Rs are less than clear. It is common to see documents that assign liability to the association for roofs and exterior walls, and liability to an individual owner for everything “from the drywall in,” i.e. anything within the walls of the unit. However, what about the space between the ceiling and the roof? Or the 2 x 4 wood studs behind the drywall? If your governing documents do not clearly assign responsibility for these elements, you could find yourself being held liable for damage that shouldn’t be your responsibility.

For example, during the winter holiday in 2011, “Adam and Theresa” were away from their condo unit for a week-long honeymoon. Two days into their nuptial celebration, the water line behind the kitchen wall broke, causing flooding and damage to the walls, floor, and the neighboring unit. The association hired an emergency plumbing service to break down the door and open the wall to perform the necessary repairs. When the happy couple returned, not only did they discover the damage to their unit, but the association handed them a repair bill in excess of $5,000. The couple immediately tendered the bill to their homeowner’s insurance carrier, but the carrier refused to pay because all elements within the wall were arguably the responsibility of the association.  Attorneys were hired on both sides and the legal arguments dragged on for several weeks. A close reading of the CC&Rs revealed that, while the main water line was a “common element” and therefore the association’s responsibility, the water line that broke was a “limited common area” sub-line, and was the responsibility of the unit owner. The association’s attorney sent a demand letter to the insurance attorney citing the CC&Rs, and, within a week, the insurance company paid the association in full for the repair.

The best medicine for the liability migraine discussed above is clear and specific language in your CC&Rs. If your current documents do not sufficiently define “common elements,” or do not specifically enumerate the various types of elements and spaces within your building structures, make sure you either amend your documents appropriately or see that the association establishes guidelines for who is responsible for specific kinds of loss.