HOA LIABILITY FOR WATER DAMAGE AND MOLD FROM ROOF LEAKS

A frequently encountered issue within condominium and homeowners’ associations is whether the association may be held liable for water damage and mold occurring inside an owner’s unit as a result of the association’s failure to properly maintain and repair the roof of the building.

In the typical scenario, the roof of a multi-unit condominium complex, which is classified as “common area” under the association’s Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”), developed leaks due to the association’s failure to perform proper maintenance and timely repairs. As a result, water entered into a unit located under the area of the leaking roof causing extensive interior damage, and in some instances mold growth. The affected owner provided notice to the association, but the association failed to take appropriate action to remediate the resulting water and mold damage, and/or to repair or replace the water damaged property within the unit.

Homeowners associations are typically responsible for maintaining and repairing common areas as defined by the CC&Rs, and an association’s failure to maintain and repair such common areas will expose the association to liability for resulting damages caused to an owners’ property under state statutes, the association’s governing documents, and common law theories such as negligence and breach of fiduciary duty.

When an association property manager or board of directors learns of common area problems, such as roof leaks, they have a duty to investigate them to make a determination as to whether the water damage resulted from a condition that is the unit owner’s responsibility, or from the common area, which is the association’s responsibility to repair.

An association may be held liable to an owner for negligence when it breaches a duty of care, and that breach is the proximate cause of harm to a member. This includes: