#286-O, Demchyshyn v. Grand Bel Manor Condominium Association (January 11, 1996) (Panel: Auvil, Kristian, Marblestone) (Marblestone dissented)

The condominium owner (CO) complained that the condominium association (CA) was violating the rules by refusing to pay for a repair to the plumbing under her shower.

The evidence at the hearing showed that the pipe under the CO's shower stall leaked into the unit below and the CA paid $176 to repair it, which it then added to the CO's monthly assessments.    The particular repair was to the shower "drain cup".  The shower stalls stand on a plywood subfloor and the drains are connected to a drain pipe which passes through the floor and connects to the waste lines serving the building.  The cup is a fixture attached to the shower stall and the drain pipe, and the top of the cup is approximately one inch above the subfloor.  The CA bylaw state that the CA is responsible to maintain the common elements and that these common elements include "all water and plumbing lines" but that the common elements do not include plumbing lines "which are enjoyed by only a single Unit and are located solely within the boundary of an individual Unit."  They likewise state that the unit owners are responsible to maintain "those parts of the plumbing which are wholly contained within his Unit and no other."  The CA declaration defined the boundaries of the individual Units as the area between the top of the ceiling drywall and the bottom of the parquet or tile floor.  [Hence the subfloor is not considered part of a Unit.]  The bottom of the shower cup is located below the subfloor but the top is above the subfloor.  There was also testimony that the cup is a part of the shower stall assembly. 

The hearing panel ruled that the CO must pay for the cost of the repair.  The panel concluded that the damaged cup was part of the shower assembly, which was located entirely within her Unit and therefore not a common element, even though part of the cup was in the common elements; in addition, the cup was part of that section of the plumbing that served only the CO's unit.  However, the panel explicitly rejected the CA's argument that the CO was liable simply because that part of the plumbing system served only the CO's unit.  "Our conclusion as to the shower assembly is based not only on the fact that the shower assembly serves solely the Complainant's unit, but also on the fact that, as we read the Declaration and Bylaws, the cup – an integral part of the shower assembly – is within the Complainant's unit.  This conclusion would not apply, for example, to a drain pipe serving only Complainant's unit, but located primarily outside that unit."