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CCOC Decision Summary

#22-13, Tang v. The Elizabeth Condominium (November 1, 2013) (Panel: Fleischer, Cromwell, Weinstein)

The unit owner complained that water was leaking into her unit from the common areas and that the condominium had failed to stop the leaks.  She wanted the association to stop the leaks and repair damage to her unit.  The leaks were apparently coming from a roof adjacent to her unit and at the same level as the floor of her unit, as well as from defective windows, from the balcony of her unit, and from the condensation drain for the air conditioner.

The condominium answered that there was no evidence of leaks, that it was in the process of building-wide repairs that would address the leak problems, and that in any event the unit owner had settled her complaints as a result of a mediation in a prior case she had filed with the CCOC.

The hearing panel first noted that “failure to maintain and repair amounts to a breach of the Association’s fiduciary duty to unit owners.  On the other hand, a common ownership community is not strictly liable for all damages to a unit caused by the failure of a common element.  Stated differently, a common ownership community must fulfill its maintenance and repair duties in a reasonable manner; only when it breaches a mandatory duty, or is negligent, will liability be imposed [citing CCOC #15-08].”

The hearing panel found that in a prior case (#50-12), the unit owner had settled a similar complaint about water leaks and unit damage for $3000.  As part of that written settlement, she waived all the claims she had, or might have had, against the condominium “from the beginning of the world to the date of this Release, whether known or unknown.”  According to the unit owner, the leaks persisted after this agreement was signed and she continued to complain about them.  The hearing panel held that under its bylaws and the Condominium Act, the condominium had “an ongoing duty to maintain and repair common elements.”  The settlement agreement, by its terms, only released the condominium from liability for damages to the unit caused by prior failures to maintain and repair the common elements.  Therefore, it did not bar the unit owner’s current claims for repairs and for damages occurring subsequent to the settlement agreement.

The panel found that the adjacent roof had been defective because it was no longer properly graded and was trapping water and causing it to pond against the exterior wall outside the unit.  However, the condominium had taken steps to temporarily prevent the water from entering the unit, and there was insufficient evidence to show that water was in fact reaching the interior of the unit.  In addition, the condominium showed that it had re-graded the roof shortly before the hearing, and had begun a building-wide program to replace all windows and sliding glass doors as well as to re-grade all balconies.

The panel also held that there was no evidence of new damage to the unit that had occurred after the signing of the settlement agreement.

The panel ordered the condominium to adopt a program to prevent backups in the condensation drain line.  It also ordered the condominium to refund to the homeowner her $50 filing fee on the ground that she was essentially the prevailing party even though her claims for repairs and damages were denied,  because many of the remedial actions taken by the condominium to prevent leaks into her unit were not taken until after she filed this complaint.  The panel dismissed all the other claims.

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