Condo Association Not Liable for Shower Leak
By Deborah Elkins
Published: April 25, 2011
Tags: Alexandria Circuit Court, Real Estate, Virginia Circuit CourtsPublished: April 25, 2011
A condo owner cannot recover from the unit owners’ association for damages from a shower leak in her unit, as the bylaws specifically limit the association’s liability for this kind of water damage; an Alexandria Circuit Court grants summary judgment to the association.
For purposes of interpreting the contract between the parties arising out of plaintiff’s purchase of a condominium unit in Carlyle Towers, the material facts are not in dispute. The Declaration and Bylaws of the Unit Owners Association govern the duties and responsibilities of the unit owners and the association regarding damages to the individual units and to the common elements.
The Declaration states in section 2.4 that repair and maintenance responsibilities are governed by the Bylaws. The Bylaws state in section 3.11(b) that the association shall not be liable for injury or damage to person or property resulting from electricity, water, snow or ice which may leak or flow from any pipe, drain, conduit, appliance or equipment.
There is no factual dispute that the damage to plaintiff’s unit was caused by water leaking from the shower within plaintiff’s unit. Regardless of the source of the leak and regardless of whether or not plaintiff was negligent, this claim falls within the limitation of liability stated above. It was water leaking from a pipe, drain or conduit that caused plaintiff’s damage. A similar limitation on liability was upheld in iiiNido v. Ocean Owners’ Council,iii 237 Va. 664 (1989).
Plaintiff argues that section 5.5 of the Bylaws and the chart of responsibilities within that section set for the basis to determine the association’s responsibilities and that chart states that it is the association’s responsibility for “Water damage to common elements or units other than the one which is the primary source of the problem through negligence of the occupants of such unit. Plaintiff argues that the issue of negligence is factually in dispute and summary judgment is inappropriate.
This section is not inconsistent with section 3.11(b), which specifically excludes specific causes for water damage for which the association will not be liable. Since the cause of plaintiff’s damage comes within the specific exception contained in section 3.11(b), that section and not section 5.5 govern the responsibilities in this case.
As a matter of law, defendant has specifically limited its liability to plaintiff and cannot be held liable.
Kuhn v. Carlyle Towers Condominium Unit Owners Ass’n (Swersky) No. CL 10002975, April 8, 2011; Alexandria Cir.Ct.; Thomas A. Hill for plaintiff; Andrew J. Terrell for defendant. VLW 011-8-073, 2 pp.
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Tucker Griffin Barnes P.C.
Charlottesville, Virginia
434-973-7474
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