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WASHING
MACHINE
FLOOD
 QUESTION:
My neighbor's washing machine hose burst in the middle of the night and flooded
my unit and the unit below mine. The board said it's not getting involved
because the association was not at fault. I know it wasn't their fault but I
think the association still has a duty to get involved. Am I wrong?
ANSWER:
There are two rules regarding floods; they always occur when they can cause
maximum damage (nights, holidays and weekends), and the other owner is always uninsured. You
are correct that the association has a duty even though it did not cause the
flood.
Common Areas Affected. The association
had a duty because the common areas are affected. Your unit is surrounded by
common area walls, ceilings and floors, all of which the association is responsible
to repair and maintain. This is true regardless of who caused the damage.
Civil Code
1364(a) The board must make sure that everything is dried out as
soon as possible so as to avoid mold in the common area walls. If the owner that
caused the flood refuses to hire an emergency restoration company, the board
should do so immediately.
Assess the Owner. Depending on your governing documents, the association can
assess
your neighbor for the clean-up and repair costs. If you or the other two owners delays the
water clean-up and wall dry-out process, you will be responsible for all mold testing and
remediation costs resulting from your delays. Repair and replacement
of hardwood floors, carpet, furniture, etc. will be each owner's responsibility
rather than the association's. Each of you will have a claim against your neighbor
with the washing machine, but
the association has no duty to get involved in your claims.
CC&R Provisions. If your CC&Rs do not
have provisions regarding damage and reimbursement, they should be amended as soon as
possible. Floods will certainly occur again and the association needs clear CC&R
provisions concerning damage, mitigation of damage, and reimbursement of costs.
ASSOCIATION'S
MAINTENANCE DUTIES
Questions regarding maintenance
duties are quite common. Operating through their
boards of directors, associations have the following duties:
 1. Duty to Inspect Common Areas. Boards
must inspect the
common areas every three years and prepare
a
reserve study listing
all major components, the remaining useful life of those components and the cost to
repair or replace them.
Civil Code
1365.5(e)
2. Duty to Investigate Complaints. Whenever boards
learn of common area problems, such as cracked sidewalks, roof leaks, plumbing
backups, etc., they
must investigate the problem.
Corp. Code §7231(a) They
don't need to personally inspect it, they can rely on managing agents, plumbers,
etc. to investigate and report back to the board. If
an owner reports a
flood
inside his/her unit, the board must determine if the leak is
originating from (i) the owner's own plumbing, which is the owner's responsibility to repair, or (ii) the common area,
which is the
association's responsibility to repair.
Civil Code
1364(a) Exclusive use common are will depend on your governing documents.
3. Duty to Repair. Regardless of fault, repairs must be made. If the leak is an owner's responsibility and he/she
refuses to repair the leak (such as a shower leak), the board has three options: (i) initiate
daily fines until the
owner repairs the leak, (ii) repair the leak and bill the owner for
reimbursement, and/or (iii)
go into court for an order that the owner either repair the leak or step aside
and allow the association to repair it (and assess the owner for
reimbursement). The severity of the leak will determine the steps taken. When
and how the damage caused by the leak is repaired will depend on whether the
matter is turned over to insurance.
4. Duty to Disclose. If repairs to the
common areas are deferred, the
board must disclose to the membership the deferral and
the board's plan for repairs.
Civil Code
1365(a)(3)
Very truly yours,
Adrian Adams, Esq.
Adams Kessler PLC
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