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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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We had a water spillage in our toilet which leaked through

Resolved Question:

We had a water spillage in our toilet which leaked through the ceiling of our neighbor living below us. As soon as the neighbor saw it and came to us to report, we went downstairs to see the damage, and offered to repair the damage. However, he elected to go to the Condo owners association. The association made the repairs without checking with us, and then sent us a bill which seemed to be pretty high. I have the following questions:
1. Does the association have any responsibility to share in the cost?
2. Shouldn't the floor be able to withstand some accidental water spillage on the floor? Such spillage should be fairly common in any household.
3. The condo units were built more than 30 years ago. We moved in about three years ago. It is likely such water spillage had occurred in the past. The floor is most likely to have been compromised. Should the association repair or replace the floor?
4. What is "floor" to us living upstairs is "ceiling" to the neighbor. Shouldn't the association have some responsibility to maintain the integrity of the floor and ceiling, especially, when is very old and compromised?
5. What are chances to win this if we don’t pay, and they sue us?
6. The association is charging a late fee every month for the repair cost we are contesting. Shall we pay them everything including the late fees.? Do we then have grounds to sue them later to recover the money?
I will appreciate your help.
Submitted: 5 years ago.
Category: Legal
Expert:  TexLaw replied 5 years ago.
Hi,

I will address your questions one at a time:

1.Does the association have any responsibility to share in the cost?

Answer: Generally, the association will bear responsibility for costs associated with common areas and with the exterior of the condos (from the outside of the studs in the wall out). However, when an owner causes damage (even though accidentally), the association may hold the owner responsible for the costs of that damage to a common element of the condominiums. Thus, in this particular circumstance, even though the toilet over-flow was accidental, the owner will bear the responsibility as it came from within the owner's condo. The association does not have any responsibility for the costs here.

2. Shouldn't the floor be able to withstand some accidental water spillage on the floor? Such spillage should be fairly common in any household.

Answer: This really depends on the type of flooring you have and how much water was actually spilt. It's hard for me to answer this question given that it is fact specific. However, it relates to whether there is potential for a warranty claim against the builder. Being that most construction warranties do not last longer than a year or two, it is unlikely that you would be able to make such a claim.

3.The condo units were built more than 30 years ago. We moved in about three years ago. It is likely such water spillage had occurred in the past. The floor is most likely to have been compromised. Should the association repair or replace the floor?

Answer: If the damage was pre-existing to your purchase, then you would have needed to identify it prior to the closing of the purchase. Otherwise, you likely are excluded from making a claim against the association for such repair under your real estate purchase agreement, with generally include "as is" clauses. Further, even assuming that such a claim could be made, it would be very difficult to establish that there was pre-existing damage which was what was repaired by the association and for which you are billed. First of all, the damage is repaired, thus the wood has been replaced, etc. How would anyone be able to determine at this point whether the damage was pre-existing. Unfortunately, I do not think you would be able to produce any legal evidence that there was pre-existing damage to support your claim.

4. What is "floor" to us living upstairs is "ceiling" to the neighbor. Shouldn't the association have some responsibility to maintain the integrity of the floor and ceiling, especially, when is very old and compromised?

Answer: Generally, in a condominium which has units separated by floors, the association will be responsible for the actual structure separating the units. If the damage to the structure of the floors was caused by an element for which the association is responsible (such as water seepage from the outside, leaks in the shared plumbing, wood rot, etc.) then the association would be responsible for repair. However, in this case, the only identifiable cause of the water damage is the over-flow from the toilet.

5. What are chances to win this if we don’t pay, and they sue us?
I cannot answer a question like this in any sort of certain manner, as my opinion would require a more thorough review of the facts and an inspection of the property with a qualified damage appraiser. However, just from what you are saying, I don't think you have a very good chance of winning.


Overall, I'm understanding that you are claiming that the scope of damage that was repaired could not have possibly been caused by the overflow from your toilet. You can dispute the amount due, but I think you will have a very difficult time supporting your dispute, as it sounds like the repairs have already been completed and there is no way to go back in and look to see what was the cause. You possibly have the defense that the association violated a good faith duty to you to let you inspect the damage to agree on the scope before charging you the amount charged. However, this will depend on what your condominium agreement states.

6. The association is charging a late fee every month for the repair cost we are contesting. Shall we pay them everything including the late fees.? Do we then have grounds to sue them later to recover the money?

Answer: Whether the association is allowed to charge a late fee for contested repair charges depends on whether it is authorized to do so by the condominium agreement. If the agreement does not authorize the association, you could pay, then sue to recover, or you could withhold and state that the charges are unauthorized.

My recommendation is to take any photographs you took of the damage along with your condominium agreement and make an appointment to see a local attorney for a more thorough review. It doesn't hurt to be completely thorough on this, especially if you are talking about a large amount of money in repair bills. Good luck.

Customer: replied 5 years ago.
We did not take any pictures.
Expert:  TexLaw replied 5 years ago.
Without any evidence other than your testimony describing how much water had leaked, there really is not a strong basis to defend against. However, you could have a construction expert review the bill they provided you and provide an opinion on whether the repaired items are related to possible water damage. The problem would that it would likely be very expensive to do so, as you would have to retain an attorney (likely at around $8,000) who would then have to hire the expert. You would spend the money defending the case, but then your likelihood of success would be very low. You could try submitting the bill as a claim on your homeowners insurance, which would likely cover liability like this.
TexLaw and 5 other Legal Specialists are ready to help you
Customer: replied 5 years ago.

The Association has threatened to serve lien on our condo, if we do not pay immediately. The value of the condo now is at about 60% of the mortgage balance, and we do not envision selling the condo in future. What happens if we do not pay the Association?

Thank you.