Q. I am the president of a small condominium association. The board of directors is concerned about potential liability to both the directors as well as the unit owners in the event water pipes freeze this winter. We are doing our best to maintain the building, but would like to know what our responsibilities and obligations are in the event the pipes freeze causing significant water damage.
A. I could write a book on this subject. There are many aspects to this answer, and I can only highlight some of the areas for you to explore.
The first -- and perhaps most important -- is to review your current condominium insurance coverage. Insurance is a complex subject, not fully understood even by some of the professionals who are involved in condominium law and management. You should make sure there is adequate coverage, and you should ask your insurance agent this question directly. It is to be noted that at the very least your obligation as a member of the board of directors is to ascertain that the insurance coverage you currently have meets the legal requirements in your condominium documents. This is not to say that the requirements of your condominium documents are themselves adequate, and of course you should have a periodic review of your insurance needs.
You should also discuss with all unit owners the critical need for them to have their own insurance policy giving protection and coverage within the four corners of their condominium unit. I always prefer to have two insurance companies fighting over a claim, rather than having no insurance company involved.
The question always asked is whether it is a good idea to have the same insurance company that writes the master policy also insure the individual units. My own personal preference is that it is advisable to use the same company; it is not mandatory, however, and if you have your own insurance company or agent you certainly should deal directly with them.
The second area of priority is the level of maintenance and inspection in which the board is involved. It must be pointed out that a board of directors is not going to be responsible for every problem that occurs within the condominium complex. The courts have held consistently that a board of directors must exercise good business judgment. If you make a mistake, but if it is an honest mistake, the courts will not permit you to be penalized.
However, as a member of the board of directors, you have a duty to make sure that the systems are functioning and that you are taking every possible precaution to avoid problems. For example, if you have an oil heating system, you must make sure that the oil tanks are filled periodically. Clearly, if the oil tanks go empty because somebody forgot to call for a delivery, and if the water pipes burst as a result of the lack of heat, I suspect that the board of directors may be found responsible for this negligence.
In order to protect the board of directors, it is a good idea to hire a management company, and to spell out the terms and conditions of that company's responsibilities and obligations in a written contract. The management company should have the responsibility for monitoring the complex on a periodic basis.
Finally, in a recent D.C. Superior Court case, Green v. Condominium Inc., Judge Henry Kennedy, held that an exculpatory clause protected the condominium association from the plaintiff's claim for damages resulting from a water pipe that burst.
Thus, your condominium association can rest assured that as long as you act properly, with due diligence, and have adequate insurance coverage, you probably will not be responsible for any damages that may result from those frozen pipes.