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Who Pays for Damage Caused by Roof Leak?

SPECIAL TO THE TIMES; <i> Hickenbottom is a past president of the Greater Los Angeles chapter of the Community Associations Institute (CAI), a national nonprofit research and educational organization</i>

QUESTION: During the recent rain storms, a roof leak damaged the ceiling and carpet in my townhouse. The roof is maintained by the homeowners association. The association’s insurance company refuses to reimburse individual owners for interior damage resulting from roof leaks.

I do not have insurance coverage on my individual unit that would pay for interior damage. It was my understanding that the association has financial responsibility for damage that results from a deficiency in the common property. Therefore, I expect the association to pay for the damage to my unit. Can the association decline payment?

ANSWER: The answer probably lies within your association’s declaration of covenants, conditions and restrictions (CC&Rs;). There may be an exculpatory, or non-liability, clause that lets the association off the hook even if negligence is a factor in the deficiency in the common roof.

The association’s insurance would not be responsible for paying for your claim if this type of exculpatory clause appears in the legal documents.

The insurance company could also deny your claim if the association has had a history of roof leaks in the past. Insurance companies soon get wise to associations that defer their roof maintenance and then expect the insurance coverage to pay for interior damage. A past history of roof leaks can result in eventual cancellation of the association’s policy.

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In my opinion, it is wise to obtain insurance coverage for the interior of your unit and its contents. This will only assist you in case of future losses. When obtaining this coverage, you should also consider loss-assessment coverage, which will reimburse you in the event that your association must levy a special assessment due to an insurance loss. This type of coverage is very helpful if your association is affected by an earthquake or flooding for example.

Consult an attorney who specializes in community association law. After reviewing your association’s legal documents and insurance policy, he or she will be able to advise you about your rights and the association’s obligations.

What’s FEMA Deadline for Relocation Funding?

Q: Our association has major damage from last year’s earthquake but we have not been able to get our units repaired yet. After many delays, the board of directors finally selected a contractor, but he won’t be able to start the repairs until next month. During the reconstruction, many of us will have to vacate our units. We were originally told that FEMA rental-assistance funds would pay for our temporary relocation.

Recently we have heard rumors that Federal Emergency Management Agency (FEMA) funds for relocation will not be available after the 18-month anniversary of the quake, which is July 18, 1995. No one at FEMA will confirm this information. If the reconstruction extends beyond July 18, will FEMA cut off our rental funds in the middle of the project?

Can you help us to obtain clarification from FEMA?

A: FEMA recently announced that rental assistance, for condominium unit owners who have previously qualified for FEMA assistance, will continue until the second anniversary of the Northridge quake, which is January, 1996.

Len DeCarlo, public information officer for FEMA, sent me the following memo in response to your question.

“Condo owners may have received disaster housing assistance when their homes became unlivable as a direct result of a declared disaster, such as the Northridge quake. They must have lived there permanently at the time of the disaster and had no insurance to pay for a place to live.

“Depending on individual circumstances, an eligible homeowner with major damage received an initial check for up to three month’s rent. This rental assistance enabled them to rent another place to live during repairs to their home.

“Those homeowners may request additional rental assistance [up to the FEMA deadline] until permanent living arrangements have been made.

“Additional rental assistance is not automatic. Homeowners who have used up their rental assistance may call the toll-free Information Helpline at (800) 525-0321 or visit an earthquake service center to request additional assistance. This procedure is spelled out in the eligibility letter the family received with the initial check.

“Condo owners should note that rental assistance is available only during earthquake repairs to the damaged home. It is not authorized for owners forced to move out during mitigation or upgrading of the home or common areas.

“Instead of rental assistance, homeowners with minor damage may have received a limited amount of money to fix their home so they could stay in it while making repairs.”

Every association that has been unable to get repairs completed should seriously pursue completion as soon as possible. Consider hiring an independent construction manager who can coordinate the work and move the project along efficiently.

Board Made Sewers Owners’ Responsibility

Q: The board of directors of my homeowner association recently adopted a policy that states that sewage problems will not be the financial responsibility of the association. Their reasoning is that the sewage pipe in front of a particular unit only serves that individual owner so they are now treating it as “exclusive use common area,” even though it is part of the common area plumbing. Do you agree?

A: The memo from the association’s management company that you included with your letter leaves much to be desired. The brief and inadequate explanation of the term “exclusive use common area” may not be accurate when applied to your association.

The memo states, “If we are going to pay for all plumbing problems, then we will have to have a vote and amend the documents. These repairs will be very expensive and may cause HOA dues to go up again.” In fact, if the association is responsible for the plumbing repairs, then the operating and reserve budget should reflect that expense, and then the cost will be spread across the entire association to all owners. The board has the responsibility and the authority to adopt a budget that adequately covers the association’s financial obligations.

I wonder if the association’s attorney was consulted prior to the board adopting this new policy. Perhaps the association has obtained an attorney’s opinion letter, which will clarify the reasons for the change. You are entitled to receive a copy of such a letter if it exists.

The association’s legal responsibility for maintenance and repair or replacement of plumbing and sewage lines could appear in either the CC&Rs; or the Condominium Plan. Presumably, the association’s attorney would have written an opinion letter only after careful comparison of those legal documents and the California Civil Code Section 1351(i)(1) which states:

"(i) ‘Exclusive use common area’ means a portion of the common areas designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests [units] and which is or will be appurtenant [adjacent] to the separate interest or interests.

"(1) Unless the declaration otherwise provides, any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, door frames, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common areas allocated exclusively to that separate interest.”

Could the word fixtures be defined as plumbing? This may be the word that your association’s board is using to negate their responsibility for the sewer lines. However, the board should be relying on the professional advice of legal counsel in this matter.

Civil Code Section 1364(a) explains the responsibility for maintenance of common areas and the individual units:

“Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing or maintaining the common areas, other than exclusive use common areas, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.”

Since I am not an attorney, I can only cite these sections of the law that refer to your inquiry. This is a confusing and complicated area of the law that has caused legal problems for many associations. If your association has not obtained legal advice, I urge you to consult your own attorney.


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