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Thomas McJD
Thomas McJD, Lawyer
Category: Real Estate Law
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Experience:  Real Estate Attorney
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There was a leak in an upstairs unit. The downstairs unit

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There was a leak in an upstairs unit. The downstairs unit was vacant. By the time the leak was discovered, repair costs were in excess of $10,000. A special assessment was made on the upstairs owner for the cost of the repairs. My question is: Since the downstairs unit was vacant and the upstairs owner was unaware of the problem until the damage was significant, can the upstairs owner be held responsible for the total cost?

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

It's impossible to give a specific answer because it will depend in part on what the association bylaws and any other governing documents provide. Generally, though, an owner is only responsible for negligent acts or those things within his/her control. If there was no way for the owner of the upstairs unit to discover the water leak so that he/she could determine it could be causing damage to the downstairs unit, then the owner is not at fault. However, if through reasonable diligence the upstairs owner should have known of the leak and that it could be causing damage below, then the owner could be held liable. Review of the bylaws would be the first place to start.

TMcJD :

I know you're in CA, but just as an example of how this can work, see the article at the following link:

TMcJD :

http://www.condominiuminsurancelaw.com/2012/03/articles/condominium-associations/condominium-unit-owners-not-strictly-liable-for-damage-originating-from-their-unit-in-ohio/

JACUSTOMER-904npo7u- :

Thank you, XXXXX XXXXX investigate the HOA bylaws. I have spoken with someone at the management company and they claim that although the leak was behind the wall and invisible to the upstairs owner, it occured before, or at the connection of their drain to the 'community' drain. Although the downstairs unit was vacant (apparently for as much as two years), it was privately owned and they had no access. Consequently, they were unaware of the problem until someone came forward to buy the downstairs unit and called the damage to their attention. It seems that if the owner and HOA were unaware of the problem until a third party called it to their attention. The upstairs owner had no way of knowing repairs were necessary or that damage to the downstairs unit was occuring. How can the upstairs owner be responsible for something they had no way of knowing about?

TMcJD :

Exactly -- how can you be liable for something that is beyond your control due to the inability to know there was a problem. It would be imposition of strict liability simply because the upstairs owner owned the unit and it was therefore in his "control." Start with the bylaws and see if you can obtain some useful information there. At that point, if you cannot manage to get this under control yourself, I would recommend retaining a local attorney to assist you in protecting your rights. www.martindale.com and the CA bar association's website would be good places to start in locating a real estate attorney.

TMcJD :

Please let me know if I can provide additional assistance. If not, I would be grateful if you could please leave me a positive rating. I cannot receive credit for my work without your positive rating and that is the sole means of compensation for JustAnswer experts. Thanks.

JACUSTOMER-904npo7u- :

Thanks again. I will give you an excellent rating. I was just looking at the article you referred me to and it speaks directly to this problem. If I have more questions after looking at the bylaws, is there a way to direct those questions to you?

TMcJD :

Yes, when you log into your account, you'll see experts you've worked with. You can request me there. You can also just begin your new question with "To TMcJD only ...." Thanks.

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