Legal Question in Real Estate Law in Massachusetts
My question is regarding a claim made against a master policy insurance for condos. We are a 20-unit complex and although the units are townhouse style we operate like a condo complex. The units are 30 years old.
The association by-laws are also 30 years old and simply state that the association of owners must provide a fire insurance policy that covers all common areas and buildings and all units, including interior walls, ceilings, floors and kitchen and bathroom fixtures for like, kind and quality as originally deeded. The appropriate policy is in place and to my knowledge always has been.
A unit owner purchased her unit 6 years ago but has never lived in it. She has had 5 different tenants over 6 years, the most recent moving in about 6 months ago.
Recently she sustained water damage to her kitchen ceiling, which is located below the bathroom. She states that cracks in her 30-yr old bathtub caused water to leak, which led to the water damage. The total cost to repair was less than the deductible on the master policy.
She wants association funds to reimburse her for the entire expense to remove a wall, replace the entire bathtub and fixtures and repair the damaged kitchen ceiling.
Since the cost to repair her unit was below the deductible that takes the insurance company out of the equation, leaving the question of what the condo association is responsible for here.
If the water damage was caused by "wear and tear" on a 30-yr old bathtub, the actual damaged tub be excluded from insurance coverage anyway; the insurance policy would cover the ensuing damage only, which in this case was a corner of a kitchen ceiling.
I would prefer not to cover any of this, as my feeling is that this unit owner never inspected her unit, not even between tenants, and in effect allowed a cracked tub to remain until there was damage. It would be the same as if someone knew they had a damaged roof shingle but didn't do anything about it until rain got into their home and caused damage.
Our by-laws state specifically that the association of owners is responsible for providing an insurance policy to cover "kitchen and bathroom fixtures," but elsewhere it states that "all repairs or upgrades to units, whether structural or unstructural, ordinary or extraordinary, and all electrical, plumbing, heating and air-conditioning" shall be made by the unit owner at the unit owner's expense.
Therefore to me it would seem that this entire cost should be incurred by the unit owner, as the cost was to repair or replace a bathtub and plumbing fixtures and repair damaged caused by the wear and tear of an old tub.
At most I would think the association might pay for the damaged wall, for the sole reason that the by-laws indicate we carry insurance coverage for such things, and if the cost were above the deductible an insurance claim would have been paid, but am I wrong in feeling that the damage was caused by needed repairs that were not made and therefore most or all of the expense should be incurred by the unit owner? I don't believe the association is liable here.
1 Answer from Attorneys
Without reading the by-laws and the master deed it is impossible for anyone to give you a real response without doing some detail review of those items. However, even 30 years ago, the interior damages to a property not caused by the exterior or common areas were the responsibility of the condo owner under most of the forms drafted even then.
I suggest you contact an attorney familiar with condo laws and have him furnish you with an opinion and perhaps recommend changes to the Condo Association to better reflect things as they exist today.
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