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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
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Experience:  JA Mentor
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I have a condo in VA, the part of the A/C unit in my storage

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Hi! I have a condo in VA, the part of the A/C unit in my storage area apparently got clogged and water infiltrated a downstairs neighbor's storage unit. I cleaned up the water and ran a fan to dry my storage unit out. I do not have any lasting damage. The neighbor was asked to do the same. He failed to the mitigate damage by cleaning up the water and running a fan resulting in black mold. He wants me to repair the damage. Am I responsible or is the HOA responsible?
JA: Because real estate law varies from place to place, can you tell me what state the association is in?
Customer: Virginia
JA: Has any paperwork been filed?
Customer: Not yet
JA: Anything else you want the lawyer to know before I connect you?
Customer: I don't think so


I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear that this happened.

Virginia Code, Section 55-79.41 defines the "common elements" of a condominium to be "all areas other than units." That should mean the A/C is part of the common elements, especially if it serves more than one unit. Check the HOA documents to see what they say.

Even if you were responsible for the initial damage, you wouldn't have any obligation to pay for the additional damage your neighbor incurred by failing to clean up the mess. He'd be responsible for the mold cleanup and any items that were destroyed because he didn't clean up as soon as he became aware of the situation. But your starting point is the HOA documents.

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Customer: replied 1 month ago.
Hi again! I was able to review the condo docs and written below is what I think is relevant.(c) The unit includes the room containing the heating and air-conditioning apparatus serving only that unit (whether or not located within the unit boundaries), which apparatus is part of the unit. Any portion of a utility system or other apparatus serving more than one unit (e.g., pipes, conduits, ducts) which is located partially within and partially outside the unit is part of the common elements. Any portion of a utility system serving only one unit which is located outside the unit is a limited common element appurtenant to that unit.(d) Notwithstanding the ownership of the various portions of the Common Elements the Unit by virtue of the foregoing boundary description, the provisions of the By-laws, attached as Exhibit "C" hereto, shall govern the division of maintenance and repair responsibilities between the Unit Owner and the Unit Owners Association of the Condominium.(e) The Common Elements of the Condominium shall include all portions of the Condominium other than the Units.MAINTENANCE RESPONSIBILITIES:
Heating and Cooling Systems -- Association: All components serving more than one unit or exclusively serving common element components. Unit Owner: All components serving one unit or located partially within and partially outside the boundaries of a unit but serving only that unit.Does this mean I'm responsible even though the storage unit is technically outside, but connected to, my unit? I have an HVAC tech coming to inspect the unit today, but since the unit is pretty small, I'm assuming some of the apparatus or main line is located somewhere else in the building and possibly services more than just my unit. The maintenance guy snaked the main drain line to clear the clog, so if the clog originated there, can I assume this would be considered part of the common element and would be the responsibility of the HOA? Or is it still my responsibility because the leak started at my unit? If it is my responsibility, what damages should I expect to pay for since he failed to mitigate mold damage? He wants the drywall and ceiling replaced because of the mold. I am attaching pictures of the damage to both units. Since I cleaned up immediately and ran a fan until dry, I have minimal damage and no mold whatsoever.Sorry for so many questions. Thank you for all your assistance with this matter!

It's going to come down to whether the A/C apparatus serves only your unit or multiple units. But if the clog originated elsewhere and caused back up to your unit, that suggests that it serves multiple units, which would mean you aren't responsible.

If they can show that you are responsible, you'd essentially only have to pay the cost of drying out the area, which should be similar to what you spent, as long as he was notified within a reasonable time of the leak. If he chose not to take steps to clean/dry the area and that's why there's mold, you don't have to pay that. It may help to total up your expenses to get an idea of what it should've cost him.

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