Ask Atty. Pat: Who Is Responsible In Case Of Damage To Condo Unit?

IN THE EVENT OF A CASUALTY LOSS, THE ASSOCIATION MUST REPAIR THE DAMAGE AND IS RESPONSIBLE FOR THE DEDUCTIBLE UNLESS THE UNIT OWNER IS AT FAULT.

The argument continues over whether the Association or the individual unit owner should be responsible for repairs to a unit in the event of a casualty loss. The basic argument depends upon a policy that protects either the rights of the many or the rights of the individual.

The argument is just a mental exercise. When the legislature has already established the policy, it is our obligation to conform to the law that was adopted. The Connecticut legislature has already established how the risks of a casualty are split between the Association and the individual in the Common Interest Ownership Act. The costs of repair of casualty damage in excess of the insurance proceeds received by the Association, including the deductible, can only be passed on to the unit owner by the Association if the unit owner or his tenant, guest or invitee caused the damage by engaging in risky behavior.

Connecticut courts have recognized that the Connecticut Common Interest Ownership Act is based on the Uniform Common Interest Ownership Act, promulgated by the Uniform Law Commission. The mission of the Commission is to provide “well-conceived and well drafted legislation that brings clarity and stability.” Although the Connecticut legislature did not adopt the comments that accompany the Uniform Act, Connecticut courts have recognized that the comments provide insight as to the intent of the drafters.

Readers of the Connecticut Common Interest Act might notice that there is an apparent discrepancy in the allocation of responsibility for the repair of units. Section 47-249 (a) states that “each unit owner is responsible for maintenance, repair and replacement of his unit.” Section 47-255 (h) (1) states that ‘[a}ny portion of the common interest community for which insurance is required under this section which is damaged or destroyed shall be repaired or replaced promptly by the association.” Because the Association is required to insure portions of the unit under Section 47-255 (a), this subsection (c) makes the Association responsible for the repair and replacement of those portions of the unit in the event of a casualty loss. The subsection (c) continues, “the cost of repair or replacement in excess of insurance proceeds and reserves, regardless of whether such excess is the result of the application of a deductible under insurance coverage, is a common expense.”

Actually, there is no discrepancy. Section 47-249 (a) applies for maintenance, replacement and repair that results from ordinary wear and tear. Section 47-255(h) (1) applies to repair and replacement that results from a casualty loss. Note that Section 47-249 (a) includes “maintenance,” as well as “repair and replacement” and Section 47-255(h)(1) only discusses “replacement and repair.”

The drafters of the Uniform Act intended that the casualty repairs be the responsibility of the Association and that the deductible be a common expense.. Comments to Section 3-113 of the Uniform Act, on which Section 47-255 is based, explores the question of “whether and under what circumstances the association may charge the cost of repair for damage to a unit or common elements to an individual unit owner, whether or not the association has insurance covering that loss.” The Comments posit several theoretical answers to the question:

(1) charging only the deductible to the damaged unit regardless of fault;
(2) charging the entire cost of repair of units and common elements against the damaged units, regardless of fault; or
(3) doing either (1) or (2) only in circumstances evidencing “fault.”

The Comment discusses the philosophical underpinnings for each answer. First, it discusses arguments for and against the position that the deductible should be allocated against the unit damaged, regardless of fault. The argument supporting this position is that individual unit owners commonly carry their own insurance. Passing the deductible on to the individual unit owner, and thence the individual carrier, will allow the association to incur lower premiums by having larger deductibles and filing fewer claims.

The Comment notes that the argument for passing the risk to the individual unit owner is inconsistent with condominium insurance practices established by the Act. First, if an insurance claim is paid by an insurer, there is no right of subrogation against a unit owner. Second, when the insurance premiums are paid by the Association, the cost is allocated against all of the unit owners based on their shares in the common expenses so that everyone shares the benefits of lower premiums. Finally, the Association might not file a claim when the unit owner needs to have the Association file a claim.

I have my own arguments against allocating the deductible to the unit owner. The Association receives the insurance proceeds and decides how they are spent. Often, the proceeds are more than is required to actually repair or replace the damage. In addition, the unit owner does not establish the Association deductible and has no say in the amount of the risk. At this juncture, some individual insurance carriers are refusing the pay the amount of the Association deductible and argue that the Association is responsible for the deductible, not the insured unit owner. Finally, the premium of the individual’s insurance may rise because of the claim or the individual policy may be cancelled. Some unit owners do not even have individual insurance coverage.

Shifting the deductible to the unit owner is even more problematic if the cost of the unit repairs are less than the Association insurance deductible. If the Association is incurring no costs for repairing a unit, the Association has no incentive to eliminate an ice dam or repair a leaking roof. The unit owner is helpless if the Association does not act. The unit owner can not remove snow and ice from the common element roof to prevent ice dam damage without incurring liability for damage to the roof or fines for violating the documents. Similarly, after the damage occurs, the unit owner can not make the repairs to the common element roof to prevent further damage to the unit without the risk of liability.

The Uniform Commissioners, and subsequently the Connecticut legislature, took the position that the excess costs, including the deductible, should be the responsibility of the Association. The Comment does note that there is a situation in which it would be unfair if the Association bore the cost: when the damage is the fault of a careless unit owner or a unit owner’s risky conduct.

As the Comment notes, the Commissioners took a middle position. They allowed the costs exceeding insurance proceeds to be charged back against the unit if there was “fault.” The charge back is in Section 3-115(e) of the Uniform Act. The corresponding Connecticut section is Section 47-257 (e).
Here is the resulting process. Under Section 47-255, the Association still repairs the casualty damage. The costs that exceed the insurance proceeds, including the deductible, are still a common expense. Then, under Section 47-257 (e), that common expense caused by the cost of the repair in excess of the Association’s insurance proceeds, including the deductible, can be assessed against the unit if the damage was caused by willful misconduct, gross negligence, or failure to comply with a written maintenance standard by the unit owner or his or her tenant, guest or invitee. Section 47-257 (e) adds the additional unit owner protection of notice and hearing.

The comment to Section 3-115(e) clearly states that the subsection was to address the concerns raised in Section 3-113 about who eventually pays the costs of repairs, including the deductible, for a casualty loss. There has to be fault for the unit owner to be assessed the costs. The comment states that “the section does not permit a charge back in a ‘no fault’ or in a ‘simple negligence’ situation. Instead, the unit owner to be assessed must be guilty either of ‘willful misconduct’ or ‘gross negligence.’”

Associations attempt to use another provision in Section 47-257 to claim that the costs in excess of insurance, including the deductible, can be charged back against the unit owners. Section 47-257(c) allows the assessment of common expenses from services benefitting fewer than all units, be assessed against the units benefits. Subsection (c) does not apply to casualty losses. As the Comment to Section 3-115, the Uniform Act provision notes, these provisions only apply to “services included in the regular budget.”

Pat Ayars is a Glastonbury attorney who specializes in condo issues. She is a member of the Connecticut Condo Association Advisory Committee.

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12 Responses to Ask Atty. Pat: Who Is Responsible In Case Of Damage To Condo Unit?

  1. BB says:

    Please answer… If the foundation of a condo unit which the association cannot insure has a crack in it and there is a leak into the lower level inside unit and does damage to the unit owners property inside the unit the association says they will repair outside crack but will not pay for repair to inside damage. Is the association responsible for the inside damage and have to replace such articles as paneling and/or carpeting or furniture? Note the unit owner cannot get insurance for that type of damage. I thank you for your reply.

  2. Noriko Hiraga says:

    Recently, my next door’s hot water tank leaked all the water in the tank and more and the water flooded into my unit. I had extensive damage in my basement. The condo insurance had a deductible of $2,500 and there were some things that the insurance company refused to cover. All of this was picked up by my insurance company minus my deductible of $1,000. Condo is refusing to cover my deductible and asked me to make my next door to pay because it was their hot water tank that caused the damage. Who is responsible for this $1,000 that no one is covering?

  3. kkcondo says:

    How do I sue or defeat a condo president who is harassing me because I disagree with her strong arm tactics. She hides behind having the associations attorney at her support and that she is elected to be president and not at personal fault for anything she does. But she uses the president station for her vendetta for those who disagree with her and gets revenge via penalties, violations. She even goes thru our trash bins and takes pictures at night of our behavior. Yet says this is her rights as the condo president.

  4. Mildred Ellison says:

    so…what about Condo Associations (such as Heritage Glen, in Simsbury, CT, which raise the deductible for the association’s insurance to $10,000 then they pay for NOTHING – they force unit owner’s insurance to pay for damage and repairs caused by property the Association should be responsible for (interior pipes, roof leaks into units, ect.)

  5. otis cox says:

    thank you, thank you
    this information is great, we need to know this. you are doing something that owners do not discuss, at meetings or any other time.

    Otis

  6. I respectfully disagree with the position taken in this article.

    First, Connecticut’s version of the Common Interest Ownership Act does not follow the Uniform Act with regards to the ability to assess repair costs against a unit owner who is “at fault.” Under the Uniform Act, the association may assess the entire cost of repair, and not just the deductible, against an owner whose gross negligence or wilful misconduct caused a loss. This gives the association the option of not submitting any claim under the master policy, and instead holding the owner responsible for the entire cost, regardless of whether the owner has the means to pay for it.

    Imagine a high-rise community where each unit has its own hot water heater. The association sends annual reminders to owners to replace older hot water heaters. One owner ignores these reminders and, after some time, his aging hot water heater fails, causing water to cascade from his unit into all units below. The total cost of repair could easily soar into the tens of thousands of dollars.

    In this example, the master policy would pay to repair the damage. However, under the provisions of the Uniform Act, the association could choose not to make a claim, and instead hold the offending owner responsible for the entire cost of repair.

    It is highly unlikely that the offending owner has adequate insurance to cover the cost of repair. It is even more unlikely that the owner can afford to pay for the repairs out of his own pocket. That being the case, the ability to charge the owner for the entire cost of repair is meaningless.

    Connecticut’s version of the Act limits the amount that the association may charge back to the owner, to just the amounts not covered by virtue of the deductible. The primary reason for this approach is that the owner can likely afford to pay for the deductible, either through his or her own insurance or, if the owner chooses not to purchase insurance, from his or her own pocket.

    In fact, this is the position that the Connecticut Bar Association took when it published the Second Edition of the Connecticut Common Interest Ownership Manual. The model declaration in the Manual contains a provision empowering the association to charge back deductibles against the damaged units, in a way that allows unit owners to obtain coverage for those costs from their own insurance policies.

    Repairing damage to the community and administering insurance claims is a frustrating process. However, the best approach is one where all or most of the cost of repairing damage comes from a source of insurance, rather than from the folks living in the community. The Connecticut approach allows associations to tap into all forms of insurance before having to look to the neighbors to pay for these costs. This is an approach the benefits the whole community, rather than benefiting one owner at the expense of all other owners.

  7. BB says:

    The first question in this article was mine. Are you going to answer it Pat? I hope so, because it would help the unit owners to know what responsibility they have or haven’t. An answer would be appreciated. Than You.

  8. Eileen says:

    If a unit is empty and is somewhere in the process of foreclosure, and because there is no heat on in the unit and the pipes crack and cause damage, who is responsible for the damage, the association or the bank or the former owner?

  9. Diana says:

    In the case of a condo fire in a 8 family/townhouse condo bldg. that destroyed 5 units but left 3 others smoke damaged, can the condo ins co upgrade the 5 damaged units when rebuilding to current code guidelines and leave the 3 still standing back in the 20th century? Is that legal? Shouldn’t all 8 receive the upgrade to make the bldg. safe. FYI, it was an electrical fire and I am one of the ones left behind in 1982.

  10. Bill says:

    Damage that is limited to stained ceiling from an undetermined origin in a second floor unit. Third floor unit owner\occupant refuses to allow inspection. Claims to have done some caulking around tub. Repair seems to be painting which is not part of the common element. Who pays?
    Same association(only 14 units) second floor unit washing machine overflowed causing staining to first floor ceiling unit. Overflow was caused when water co was working in the street. All unit occupants were notified that shutoffs should be utilized on all appliances that had continuos water feeds. Occupant did not shut off water supply to the appliances as directed. Once again it appears the repair is limited to a ceiling painting. Who pays?

  11. Anonymous says:

    I live in a new york condo; Recently my hvac heating unit does not work the association told me that is my responsiblity. The bylaws say that all motors, fans, conduits, compressors and any equipment in the or installation is a common area. What do you think? thank yu

  12. steve coleman says:

    thank you for the information regarding who is responsible in case of damage to a condo unit.

    but my concerns and those of my neighbors deals with the responsibility for maintenance, repair and replacement to the exteriors of our buildings. after 11 years, our new board is redefining that responsibility and making it the responsibility of the unit owners to pay for painting of trim, cleaning and staining of cedar shingles etc. The unit owners do not agree. The board and their attorney are ferring to these elements as a part of the unit and therefore the responsibility of the unit owner. Our declaration clearly spells out the boundaries of the units as being the interior walls, ceilings and floors and there fore the exteriors are part of the common elements. Can you please give me some advice with regard to this matter? We are a planned community located in Litchfield, Ct. Thank you.

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