Q: Can a condominium association extend, through its rules, liability where it would not normally exist? A problem recently arose when water from a leaking toilet seal in my unit caused damage to the ceiling of the unit below. My insurance company said I was not liable because the damage was caused by wear and not negligence and therefore I am not covered. The condominium association, on the other hand, has a rule that makes me liable for all damage from leaking toilets or other water facilities.
A: This question is discussed and debated in every condominium association throughout the country. There is no easy answer to the problem.
In a condominium association, as has been stated in this column on many occasions, the governing constitution is the declaration and the by-laws.
You must first look to these documents to determine whether they give you any guidance. Pay particular attention to the definition of a "unit" and "common elements." It may very well be that you can determine from these documents whether the toilet seal is considered part of your unit or whether it is considered part of the common elements.
My suspicion, however, is that the documents will not help you find the answer. In the absense of such help, the board of directors of a condominium association has the right to enact reasonable rules and regulations affecting the entire condominium association. If the condominium association's rule makes you liable for all such damage, chances are that this rule will have to be followed. As has also been stated in this column, a condominium association is a "mini-democracy," and you must adhere to the rules and regulations governing your democratic society.
However, if we are to draw the democracy analogy a little further, you also have the right to challenge the "constitutionality" (in this case reasonableness) of those rules and regulations. You should first start with the board. Request, in writing, that the board give consideration to whether these rules are in fact reasonable. Furthermore, determine whether the board of directors has selectively enforced the rules, or whether it is applying the rules uniformly--across the board.
If you are dissatisfied, you certainly have the right to challenge these rules in a court of law. I must point out, however, that litigation is expensive, time-consuming, and you may have as much luck in the courtroom as you will have at a gambling casino.
It should further be pointed out that if you lose the case, you run the risk of having to reimburse the condominium association for its legal fees--which means that you will end up paying for both your lawyer as well as the condominium's lawyer. Read your documents carefully, before you enter into such legal action.
The fact that the insurance company indicated that you are not liable should also be questioned. It may very well be that the condominium has a master insurance policy which covers these problems. I suggest that your condominium board of directors should evaluate its own insurance policy quite carefully to make sure that all possible contingencies are covered.
As stated earlier, this is a most complex--and frustrating--problem. Condominium boards of directors should begin to look at these issues now, in an effort to avoid such future problems. It is suggested that the condominum association review its own rules and regulations, and discuss the matter carefully with its insurance representative and its legal counsel. Finally, once a decision has been made on these issues, the subject should be placed on the agenda of the next annual meeting so that all of the unit owners will have an opportunity to understand the rules and the rationale behind those rules.
Pets, parking and plumbing appear to be the most pressing problems for condominium associations.