J. Patrick Sutton Cases & Issues Blog

The Wet Condo Problem

At any given time, I have three or four cases involving condominiums where the condo association's ("HOA") neglect has caused some form of damage within individual units. With the coming of global warming and the volatility of Central Texas weather, the most common fact pattern is water infiltration, usually from a leaking roof, bad flashing, building design defect, or other water control system failure (landscaping, hardscaping, plumbing). People often call me after an HOA (or property manager) has said, "We don't have to pay for any damage inside of units."

Bogus. Anyone who has either a contractual duty or a common-law duty to repair and maintain property is potentially liable if that failure results in damage to someone else. While it's true that an condo HOA is not required to repair and maintain individual units in most cases, a condo HOA
is responsible for its own breaches of contract or negligence if its failure to repair or maintain common elements (roof, foundation, etc.) causes damage to an individual unit.

These are often difficult cases because if an HOA is not keeping itself in repair, it's often because it doesn't have the cash. But that's not an excuse for not acting. HOA's are still required to do their duty, even if that means raising money by assessing all the owners or taking out loans to do it. HOA responses that "we don't have the money" are in essence an admission that the HOA is a failed entity that needs to be placed in the hands of a court-appointed receiver. Moreover, an HOA's failure to keep its property in good repair harshly penalize one or two owners at the expense of those not affected. Thus, ground-level units at one end of a building may be sodden and moldy, but those one or two owners are made to suffer while all the other units get a free ride to ignore serious building issues.

There are ways to solve these cases, but I have yet to see one that was solved quickly or without hardball lawyering. HOA's that are essentially failed have no one in charge to make litigation decisions. Condo boards that are unwilling to do their jobs and assess all owners to make repairs simply sit on these cases, intransigent, until forced by the court to act, since they can then point to a court order as the basis for assessing everyone. They also usually demonize the victims — people whose homes are, in many cases, rendered unlivable by constant water inundation and mold.
J. Patrick Sutton Cases & Issues Blog