03/13/08: Skylight Is Leaking: Who Is Responsible?

Housing Counsel

By Benny L. Kass

Q: I purchased a condominium unit 10 months ago and the roof around the edges of the skylight has started to leak. Our management company had their maintenance people look at it and opined that I need to replace it and the cost would be mine. I disagreed with them and they asked their attorney for an interpretation. The lawyer responded that I was responsible, but I know that he did not have all documents when making that opinion since he could not provide me with a copy of the Floor Plans. What should be my next plan of action since I continue to disagree with the interpretation provided by the management company’s attorney?

A: First, your association’s attorney – and not the lawyer for the management company – should be providing the legal interpretation of your condominium documents.

You may also want to retain your own counsel, rather than rely on lawyers who do not represent you.

The answer to your question will be found in the legal documents of your condominium association. Those legal documents are the Declaration, the Bylaws and the Plats and Plans .

The Declaration – which as its name suggests – is the legal document which “declares” your building to be a condominium. It is recorded among the land records where the property is located.

In a condominium, there are three basic components:

• common elements, such as the roof, elevators, and the entrance lobby;
• units, the apartment in which you live, and
• limited common elements. These are common elements – such as a balcony or a deck – which not everyone in the complex can use or have access to.

The Declaration will define each of these entities. In general, the common elements include the land, foundation, slabs, perimeter walls, pipes except water and sewage pipes serving only a particular unit, water mains, electrical wiring except the wiring serving only one unit, conduits, public utility lines, steps and exterior lighting devices of common use or necessary to the existence, upkeep, use and safety of the building.

Units are also specifically defined. Here’s an example from an existing condominium:

Each Condominium Unit includes the horizontal space between the Unit side of the exterior walls of the building and the finished walls separating the Unit from corridors, stairs, and, where applicable, to the surface of the finished walls of those interior walls which separate one Unit from another Unit. Each Condominium Unit also includes the vertical space measured from the (topside) surface of the subflooring to the finished (exposed) surface of the ceiling of such Unit.

It sounds a little legalistic, but if you read it carefully, you will see that your unit includes everything from wall to wall and from floor to ceiling.

Many documents will specifically include other items as units, such as the mechanical equipment in your unit, or that which serves your unit – such as a heat pump which may be up on the roof but nevertheless is legally part of your unit.

You claim that you do not have the floor plans, which technically are called “Plats and Plans”. This is a document which is filed with the local government surveyor’s office, and will usually depict the three components, although often not everything is identified. It may be that the skylight is labeled, and you are certainly correct in demanding that this document also be reviewed before a legal opinion can be rendered.

Why is it important to determine whether your skylight is a limited (or common) element or part of a unit? Because unless your governing documents state otherwise, in general, the owner of the unit is responsible for the maintenance, repair or replacement of the unit, while the condominium association is responsible for general and limited common elements.

But while all of this legal research is proceeding, you should not sit still. You have a leak which will continue until the problem is resolved. Whether you or the association pays for the cost of the repair is – for the moment – irrelevant. One of you should immediately retain a licensed roofing contractor and have the leak fixed. Otherwise, you will continue to incur more damage to the inside of your unit.

There is yet another aspect to your problem, namely insurance. You – or your attorney – should carefully review you legal documents as well as the condominium law in your jurisdiction. In condominiums, there are two types of insurance coverage that impact on problems such as you are having: the master insurance policy and your own Unit Owner’s policy.

The master policy is issued in the name of the association and is paid for by the Association. Often, even if the association is not responsible for the damage, the master policy may cover some or all of the damage. For example, in the District of Columbia, the Condominium Act specifically states:

If at the time of loss under the policy, there is other insurance in the name of a unit owner that covers the same risk covered by the (association’s) policy, the …association’s policy shall provide primary insurance. [Title 42-1903.10 (e)(4) of the D.C. Code].

You should have your own unit owner’s insurance coverage, which is called an H0-6 policy. You – and the association – should both file a claim with your respective carriers and let them fight out who is responsible for the payment. Usually, these policies require that the insurance company be advised of the problem within 30 days from the day that the problem is discovered, or there will be no coverage under either policy.

My advice: get the problem fixed immediately, even if you have to pay out of your own pocket. If you do this, take before and after pictures and keep all receipts. Then see if there is insurance coverage available to you. The legal interpretation as to who owns the skylight is important but should not hold up the process of stopping a bad leak, which can lead to moisture and mold.