That Leaky Roof - Who is Responsible for Repairs?
Question: I have owned and occupied my three bedroom condominium for the past seven years. About two years ago, my bedroom ceiling began to leak, occasionally, when we experienced a heavy rainfall. I reported the problem to the management office at the time, but they did not take any action. Because the leak was slight and occurred only intermittently, I didn’t press the problem. But recently, the problem has gotten considerably worse. When I asked again for some action to resolve the problem, I was told that because I am the only one affected by the leak (my unit is on the top floor), the association isn’t required to do anything about it. Basically, the management company told me, it’s my problem; if I want to fix it, I can pay for the repair. This seems unreasonable to me.
Answer: Not only unreasonable, but also contrary to the association’s legal obligation to maintain the common areas. The roof clearly qualifies as a common area and, regardless of whether the leak is affecting one unit or 100 units, the association is responsible for financing any necessary repair. The condominium statute and condominium documents in Massachusetts (and most states) require the association to use “reasonable care” in maintaining the common areas, the attorneys we consulted explained. If the association fails to meet that obligation, it could be liable for any damage that results.
That doesn’t mean the association is liable automatically for any damages you or other unit owners might suffer, however. For example, if a slow leak that you had never noticed previously caused your bedroom ceiling to collapse, you could not necessarily claim that the association had failed to exercise reasonable care. On the other hand, if you complained about the leak for a year before the collapse and the association refused to take any action, attorneys agree that you would have a strong argument that the association’s insurance company, not yours, should pay for the damage. This is one reason industry executives suggest that owner obtain their individual insurance policies from the same company providing the association’s master policy. In situations such as these, the insurer would essentially be arguing with itself about which policy should apply.
Obviously, it would be much better for you and for the association to address the leaky roof before you resolve the argument about who should pay for damages. If the management company hasn’t responded, take your complaint to the condominium board. If your personal request doesn’t get anywhere, have an attorney write a letter on your behalf. Your next step after that is to bring what is known as a “derivative action,” asking a court to order the trustees to do what the law and the condominium documents require—namely, repair the roof. You would bring that action on behalf of all affected unit owners, and if the court accepts the suit, it might order the association to pay court costs and your attorneys’ fees.
If other owners don’t want to get involved (a not uncommon response), you might point out that while water may not be dripping directly on their heads, roof problems tend to get worse, not better, over time. Deferring needed repairs will only increase the size of the bill that unit owners will have to pay eventually to address the problem. If the leak damages your apartment, the association’s insurance policy should cover the damage. But association master policies typically have huge deductibles, which unit owners must pay – another point you might make to owners who say your leaky roof isn’t their problem.
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