Water Damage: Who Pays When the Condo/HOA Documents Are Silent?

February 2025

Tags: HOA Common Areas, HOA Common Elements

This article is part of an ongoing series in which we'll take your questions from the HOAleader.com discussion forum and get you the answers you need from experts who specialize in association management. If you have a question you need answered, post it on the message board.

An HOAleader.com reader asks: “We live in an 8-story 72-unit condominium. A unit owner's ceiling developed water stains from a water leak from the unit above and says they shouldn't be responsible for repairs. They argue that the unit owners above should pay for repairs. Our rules and other documents don't mention anything on this subject.”

Here, we ask experts if it's common in their area for documents to be silent or what they typically say, plus how this condo should proceed in this dispute between the owners.

Arizona—”Normally, documents will say who owns that area,” says Melissa S. Doolan, an attorney at The Travis Law Firm in Phoenix, who has represented community associations for the last 15 years. “So in Arizona, to answer the reader's question, we'd ask who owns the ceiling.

“The answer probably is that you're responsible for your portion of the ceiling, and the owner above is responsible for their floor unless you can show someone is negligent,” she explains. “If you can show the upstairs unit owner was negligent, you can get them to pay for it. You need to make sure repairs are done before fixing ceilings and floors, and you'd rely on the report of the plumber or other professional to tell you what caused the leak.

“I do have condos that have adopted water-mitigation polices to prevent water intrusion,” adds Doolan. “They'll require steel-braided lines for toilet supply lines and periodic inspections of components like water heaters, and they'll adopt guidelines to show who's responsible in these situations. The big culprit is water heaters, so some communities will require their replacement every five to seven years.”

Colorado—”In my experience, documents always have something related to this issue,” says Elina Gilbert, CCAL, a shareholder at Altitude Community Law in Lakewood, Colo., who has specialized in community association law for 24 years. “Sometimes you have to do a pretty in-depth legal analysis.

“The key here is that there's always a default answer,” she adds. “It's based on ownership, and whatever you own, you have to repair unless your declaration shifts that responsibility. So if documents are silent, it's a matter of what you own.”

The answer also depends on the type of community. “If they're condos stacked on top of each other and water lines are running between the floor above and the ceiling below, they're considered common elements,” says Gilbert. “That would fall on the association. But if it's two townhomes that share a wall, everything in that wall belongs to the homeowners, so it wouldn't be the association's responsibility. That would be between the two owners.

“Finally, if there has been negligence that caused the damage, that puts a little monkey wrench in the analysis,” she states. “That always comes up. The board thinks it's the homeowner's fault, the homeowner says it's the association's fault. When someone claims negligence, you have to go in and fill in the blanks.”

California— “It's fairly common here in California that the documents don't really address this specific issue,” according to James R. McCormick Jr., CCAL, a partner at Delphi Law Group in Carlsbad, Calif., who has represented association clients for nearly 30 years. “We often add language to address it. If a declaration is silent, we also draft a water intrusion policy that says, ‘You have to take these steps to address the issue.'

“Generally, the owner is responsible unless there's been gross negligence,” he adds. “Under California law, the association maintains the common area, and the owner maintains their separate interest. Unless there's been negligence, each owner repairs their respective unit, and the space in between is going to be the association's responsibility. It's not a strict liability that if water flows from upstairs to downstairs, it's the upstairs unit owner's responsibility. It's a negligence standard.”

Massachusetts, Rhode Island, and New Hampshire— “Documents are often silent on water damage,” says Janet Oulousian Aronson, a partner at Marcus Errico Emmer & Brooks in Braintree, Mass., who is licensed in that state, in addition to Rhode Island and New Hampshire.

“But most condo documents will spell out the maintenance and repair obligations,” she adds. “They'll say the responsibility for the unit is the owner generally and the common areas is generally the condo. So in another sense, they do say who's responsible. If it's damage to the unit, it's the owner's responsibility. They may have a claim against the association or the unit above for the damage caused to their unit, but they have to start by handling it themselves.”

Reposted from HOALeader.com

The information contained, and the opinions expressed, in this article are not intended to be construed as investment advice. Housz, Inc. does not guarantee or warrant the accuracy or completeness of the information or opinions contained herein. Nothing herein should be construed as investment advice. You should always conduct your own research and due diligence and obtain professional advice before making any investment decision. Housz, Inc. will not be liable for any loss or damage caused by your reliance on the information or opinions contained herein.

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