Condominium Association Found Liable For Sewer Back-up Damage Inside Unit
A recent California case, Affan v. Portofino Cove Homeowners Association, Inc., No. G041379, (Cal. App. 4th October 29, 2010), involves an interesting issue of liability for resulting damage and contamination to the interior of a condominium unit related to a sewage back-up from the association common area plumbing.
In 1986, Akil and Cenan Affan bought a unit in the Portofino Cove Condominium as a vacation home. Since 1999, the Affans experienced a series of plumbing back-ups inside their unit. From 1999 to 2005, every time they arrived at their condo for a visit, they found sewage residue in their kitchen sink or in the sink and tub in their master bathroom. This happened nine times in that six-year span. Upon discovering each sewage back-up, the Affans reported the problem to the property manager for the complex. They also consistently reported each plumbing incident to at least one member of the association’s board of directors. The Association property manager hired a plumber to snake the Affans’ drain line after each occurrence.
The situation involved a chronic problem at the Affans’ condominium unit. A major sewage back-up caused severe damage to their condo when kitchen sink debris and grease from the upstairs units erupted in the Affans’ master bathroom sink, tub, and vanity closet. The sewage also overflowed onto the floors of the master bathroom and adjoining bedroom. Their unit was uninhabitable after that loss, and the association did not dispute that fact. The association filed a claim with its property insurer, however, they encountered a snafu regarding coverage for the loss since the Affans began experiencing plumbing back-up problems in 1999, and the association switched to a new insurer in 2000. A dispute arose concerning which of the two insurers would cover the damage resulting from the most recent major back-up. It does not appear that the coverage dispute was litigated with the insurers.
In response, the property manager hired a restoration company to perform emergency clean up work and water extraction in the unit. The Affans were not satisfied with the association’s efforts, and they sued their association and its managing agent, alleging a breach of the duty to maintain and repair the common area plumbing, which resulted in a sewage blockage that caused flooding of their condominium unit, and that the association and property manager failed to remediate the resulting damage and contamination. After a bench trial, the trial court found the association liable and awarded the Affans their remediation and restoration costs as damages.
The California Court of Appeals affirmed the portion of the judgment from the trial court which awarded the Affans $33,800.00, the cost of the remediation and clean up. The issue of the association’s insurance company’s potential responsibility for the loss and ensuing damages was not litigated in this lawsuit. However, associations, property managers and directors may often have questions concerning whether they are responsible for damages to the interior of a condominium unit that arise from a situation on the common area association property. This is a particularly fact specific area of law with overlapping layers of potential insurance coverage available for certain losses. Those in need of guidance in such scenarios should consult professionals with experience in such insurance coverage work to explore and evaluate the potential insurance coverage.
I am part of a condo association and have the same problem as in the article above.My questions is, if the blockage which caused this problem came from the pipe servicing only the effected condo, and not the common area pipes who then is responsible?
Thank you for your comment and inquiry. It is an interesting issue. If it is conclusively shown that the blockage which caused the back up is in a portion of the pipes that service only the individual unit, before reaching "common area" property, it may be a stronger case for responsibility with the unit owner's HO-6 insurer. However, we would want to review the association's declarations to determine how it defines common areas and fixtures before reaching a conclusion. I will have another post on this topic this week regarding a California courts' view that sewer pipes are part of a series of interconnected pipes which ultimately feed into one common line and that differentiating parts of that interconnected system is unreasonable.
If it has been determined that the pipe that is backing up into one units property is a common element pipe but the cause of the back up is from severe rain storms and the only way to prevent the back up is to install a flood control system in front of the common element pipe, would the condo association be responsible to pay for that or the individual owning the unit that gets flooded?
We own a condo that has had past sewage backup and just recently experienced another round where we had to totally replace carpet and flooring again. My HOA is saying that I am responsible after their plumber ran a camera line and they said it was due to tampons and a flat spot on the drain. This same plumber told us before he ran the line that the unit above ours was connected and that that was causing the back up. What can I do. Can't exactly jack hammer the slab at this point.