Who Is Liable for Damages From Water Leak?

QUESTION: The condo above our unit had a water leak. Our whole bathroom ceiling fell down and the walls and wallpaper also had to be repaired. The association had a plumber repair the leak and then billed the owner of the unit above us.

We repaired the ceiling, walls and wallpaper and when we tried to collect from the association, we were told that the association was not at fault. Who is responsible for our damage, the association or the owner above us? How can we collect?

ANSWER: If the leak had resulted from common plumbing within the walls, I would say the association would be responsible for repairing the ceiling and walls and you would be responsible for replacing the paint, wallpaper or other surface decorating.

Your board should rely upon the wording in the association documents and the precedent that has been established in prior incidents of this type. However, it appears that the leak occurred in piping within the upstairs owner’s unit, since the association billed the other owner for the plumbing work and declined to pay for your repairs.

It’s too late now, but this is what you should have done when the leak occurred. After mopping up the water and doing everything you could to protect your unit from further damage, your next step should have been to contact your manager or board president to find out who was responsible for the damage.

If the association was not responsible, you should have filed a claim with your own homeowners’ insurance company because many CC&R;’s have clauses that protect the upstairs owner from liability in this type of situation. Few insurance companies would process a subrogation claim against the owner where the leak occurred because it is difficult to collect unless negligence can be proven.

Read your CC&R;’s and talk to your own insurance agent to determine if anything further can be done to recover the cost of your repairs. Be sure that your insurance policy protects you against this type of damage in the future.

Neighbor Installs Objectionable Window

Q: In our townhouse association, our board of directors has allowed reasonable exterior wall changes requested by the owners. Recently, my neighbor installed a window in a portion of the wall that overlooks the roof of my unit.

I had registered an objection based on the notion that a common wall should be left intact without any openings, even though there is empty space above the roof on my side. The board approved the new window. Has our board exceeded their powers in this case?

A: From the information that you have provided, I can find no fault with the board’s decision. Since the window overlooks your roof, I assume that your privacy is protected. Of course, if the window is improperly installed, a leak could result, which would be a concern for both you and your neighbor.

Associations Entitled Legally to Raise Fees

Q: What is your opinion of the law that raises assessments 20% per year in community associations without consulting the owners? How was this terrible law allowed to pass? Our part-time secretary/treasurer, who is the wife of the board president, has had her salary increased from $600 per year in 1987 to $13,200 in 1990. Please give your advice.

A: You are incorrect if you believe that the assessments are automatically raised 20% per year. The board has the authority to raise the assessment that much if they determine that an increase is needed.

To answer your second question, the law was passed because some associations had restrictions in their documents that limited budget increases to 5% per year. This was too low to keep up with inflation in some years. Associations were unable to adequately maintain their property.

If the developer left the association with a low-ball budget and inadequate reserves, the association had no way of overcoming the problem.

Now, about that secretary/treasurer. . . . It appears that there may be a conflict of interest if the president and his wife hold three board positions and they vote for her increases in salary. I would question their right to serve together on the board, especially if they own only one unit in your association.

Check your CC&R;’s to see if officers are entitled to a salary. A board position is usually voluntary, though the board has the authority to hire others to perform services. The CC&R;’s or bylaws of some associations state that officers are not allowed compensation for services performed for the association.

Reimbursement of expenses such as postage and office supplies is always proper.

Hickenbottom is past president of the Greater Los Angeles chapter of the Community Associations Institute (CAI), a national nonprofit research and educational organization. She welcomes readers’ questions, but cannot answer them individually. Readers with questions or comments can write to her in care of “Condo Q&A;,” Box 5068, Thousand Oaks, Calif. 91360.