Water damage from upstairs neighbor - insurance, subrogation, other recourse?

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jplee3
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Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sat Oct 21, 2017 4:54 pm

Hi all

I'm in a downstairs condo unit and my upstairs neighbor leaked into our unit, causing a good amount of water damage. We knew something wasn't right because we heard dripping late at night a couple weeks ago. After we turned the water off going into her unit for the night, the dripping eventually slowed and stopped. She had a plumber come investigate the next day and when he pulled her fridge out the water line going into her fridge was leaking (I was up there with them and saw it... no pics, unfortunately).

The water got into our unit below and saturated the ceiling above our fridge (same layout/stacked kitchen) and the lower portion of the wall was also wet and seeped into the carpet of the living room and bedroom on the other side of the wall. I contacted insurance last weekend because she was slow to respond in terms of rectifying - she claims to have fallen sick/ill this entire past week... Anyway, my insurance company sent out a water remediation company to survey the water damage then do the demo - they ripped out pretty much the entire portion of drywall behind where the fridge usually sits as well as the ceiling area and cabinets that were above the fridge. They also had to remove baseboard and carpet padding in the corners of our master bedroom and living/dining area as those rooms are on the other side of the adjoining wall which had gotten wet at the bottom. They ran dehumidifiers and fans for a few days until it was dried up.

It sounds like we're generally covered by our insurance but they will subrogate to reclaim the money from her insurance. We would also really like our deductible of $500 back (this may not be much to some of you but especially for something that clearly wasn't our fault, this is a lot of money for us). Our claims adjuster said they will try to reclaim the deductible during subrogation but there's no guarantee of it coming back. He suggested we get the insurance info from her and attempt to contact her insurance company directly to ask to reclaim the deductible based on her being liable for the damage caused.

The problem is that she seems to be avoiding contact with us and trying to stall on giving us her insurance information or claim number. She's pulling the "I was sick all week" card and said she'd send the info yesterday (after asking for the 4th or 5th time) but she hasn't. The other thing here is that she just went into escrow on her place and is in the process of selling - she opened several days before we heard the dripping behind the walls. I'm wondering if she's trying to ignore/brush this under the rug in hopes of moving out asap and not having to deal with all this.

Any advice on what we should do at this point? I've contacted our HOA and they and the HOA's insurance agent basically said this sounds like a "neighbor to neighbor" dispute/issue that we need to resolve amongst ourselves, and that they typically won't even get involved unless the damages exceed $10k. Even then, since this was the internal wall/ceiling of our units, they'd more than likely keep their nose out of it. I'm going to contact them again on Monday and try to speak with the actual property/community manager for the association just to see if they can do *something* (at least issue a letter to the neighbor indicating that they are responsible for the damages, etc). As far as speaking directly with the neighbor, I'm trying to avoid any sort of direct confrontation with her, considering how on-edge both my wife and I are having lived in what sounded like the inside of an airplane for several days.

Oh, this is in Southern California BTW.

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Sandtrap
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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Sandtrap » Sat Oct 21, 2017 5:25 pm

Your insurance is covering everything except the $500 deductible.
You are trying to get the homeowner, or their insurance company in turn, to reimburse you the $500 deductible.
The above property is in escrow. Soon the owner will be gone.
Is this correct?

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Mudpuppy » Sat Oct 21, 2017 5:46 pm

If your insurance has her information, her being in escrow isn't going to stop them from doing their job. It's possible that she's avoiding you so she can avoid telling the buyer about a known issue in the unit, but there's not much you can do about it. Should the buyer discover this issue and she did not disclose it during the closing process, she'll have bigger issues on her hands than paying you back your deductible.

Personally, I'd just let your insurance handle it. Don't waste your energy on it, because it sounds like a bit of a lost cause. If your insurance gets the money back through the subrogation process, you can be pleasantly surprised.

jplee3
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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sat Oct 21, 2017 6:24 pm

Sandtrap wrote:
Sat Oct 21, 2017 5:25 pm
Your insurance is covering everything except the $500 deductible.
You are trying to get the homeowner, or their insurance company in turn, to reimburse you the $500 deductible.
The above property is in escrow. Soon the owner will be gone.
Is this correct?
Yes, this is correct.

jplee3
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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sat Oct 21, 2017 6:27 pm

Mudpuppy wrote:
Sat Oct 21, 2017 5:46 pm
If your insurance has her information, her being in escrow isn't going to stop them from doing their job. It's possible that she's avoiding you so she can avoid telling the buyer about a known issue in the unit, but there's not much you can do about it. Should the buyer discover this issue and she did not disclose it during the closing process, she'll have bigger issues on her hands than paying you back your deductible.

Personally, I'd just let your insurance handle it. Don't waste your energy on it, because it sounds like a bit of a lost cause. If your insurance gets the money back through the subrogation process, you can be pleasantly surprised.
Thanks. I was considering sending her an email explaining the damage found and facts, along with pictures of everything, and cc'ing the property manager and others. BTW: why would she think that avoiding me would result in avoiding telling the buyer that there's a known issue? If I see him around again (because he actually stopped by right after they went into escrow to 'interview' me about the neighborhood) I am seriously considering telling him - is that a bad idea?

Why would the buyer care if the issue occurred but it only affected me and I got it all remediated? There's not really any damage to her unit except for a smaller wet spot (the water remediation company found it during their inspection and just recommended that they hire a handyman to cut it out and patch it back up - not sure she even did that).

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by stan1 » Sat Oct 21, 2017 7:07 pm

Let your insurance company be the intermediary. That's what you've been paying them to do all these years and now they are doing their job. I would not interact with the neighbor in any way that would lead to a stressful or confrontational situation. How do you benefit financially or emotionally from a confrontation?

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by earlyout » Sat Oct 21, 2017 7:23 pm

Be aware that state condominium and insurance law governs who is responsible for your damage in cases like this. I live in Georgia and on three occasions I have had water damage from condo units above mine. In each case I would have had to prove negligence on the part of my upstairs neighbors or negligence on the part of the HOA to collect from their insurance. In all cases my insurance paid for the damage to my unit after I paid my deductible. Leaks and accidents happen. That is why we have insurance.

Let your insurance handle the issue. They may or not try to subrogate the damages.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by boglerdude » Sat Oct 21, 2017 9:21 pm

What insurance co is this. Many dont cover seepage/slow leaks.

Read your CC&Rs, the area under the paint (maybe more) is common property, which she damaged. In theory I think the HOA could bill her.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Ruger » Sat Oct 21, 2017 9:54 pm

We recently had this same issue at my condo building.
The owners carry insurance to cover from the walls in, but the condo association carries insurance to cover the buildings themselves.
The condo association insurance is who ended up paying for all the damage, not the individual owner's.

jplee3
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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sat Oct 21, 2017 9:59 pm

boglerdude wrote:
Sat Oct 21, 2017 9:21 pm
What insurance co is this. Many dont cover seepage/slow leaks.

Read your CC&Rs, the area under the paint (maybe more) is common property, which she damaged. In theory I think the HOA could bill her.
Thanks...

Here's what I have so far:
"Common Area" means the entirety of each Project except the Units in each such Project and, without limiting the generality of the foregoing, specifically including all structural projections within a Unit which are required for the support of a Condominium Building, gas, water, and waste pipes, all sewers, all pipes, ducts, flues, chutes, conduits, wires, and other utility installations wherever location (except the outlets of such installations when located within Units), the land upon which the structures are located, the air space above these structures, all bearing walls, columns, floors, roofs, foundations, common stairways, window glass and the like.
Not sure if that's as clear-cut or if there's likely more I need to look through. I'm still trying to go through the CCR and figure it out - unfortunately, it's an scanned PDF of an imaged of the document and not a typed PDF. Wish they would have converted it.

I should mention that the contractor, when cutting into the wall behind the fridge, ran into a firewall and could not cut into or remove it (probably because this would violate fire code?). Not sure if this has any bearing on the situation or changes things.

I have another neighbor who suffered similar damage being on the bottom floor and she said the owners above her paid for everything and didn't have insurance either. I'm trying to find out from her how she approached the situation.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sat Oct 21, 2017 10:01 pm

Ruger wrote:
Sat Oct 21, 2017 9:54 pm
We recently had this same issue at my condo building.
The owners carry insurance to cover from the walls in, but the condo association carries insurance to cover the buildings themselves.
The condo association insurance is who ended up paying for all the damage, not the individual owner's.
How do they define "walls in" and what that entails versus "buildings" - in my association they seem to try to define "buildings" as the exterior walls. I've verbally been told this, along with *any* "interior wall and what's behind it" is homeowner responsibility. I don't get how that makes sense when we share walls with the unit next door to us as well as the ceiling and space between that separates our unit from the top unit. I would *think* those areas should be considered "Common" but I feel like the HOA/management tries to push it back on the homeowners, thus creating an endless cycle of 'pass-the-buck'

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Ruger » Sun Oct 22, 2017 12:45 am

jplee3 wrote:
Sat Oct 21, 2017 10:01 pm
Ruger wrote:
Sat Oct 21, 2017 9:54 pm
We recently had this same issue at my condo building.
The owners carry insurance to cover from the walls in, but the condo association carries insurance to cover the buildings themselves.
The condo association insurance is who ended up paying for all the damage, not the individual owner's.
How do they define "walls in" and what that entails versus "buildings" - in my association they seem to try to define "buildings" as the exterior walls. I've verbally been told this, along with *any* "interior wall and what's behind it" is homeowner responsibility. I don't get how that makes sense when we share walls with the unit next door to us as well as the ceiling and space between that separates our unit from the top unit. I would *think* those areas should be considered "Common" but I feel like the HOA/management tries to push it back on the homeowners, thus creating an endless cycle of 'pass-the-buck'
Our responsibility is anything that happens inside the interior walls. Anything that is beyond that-which would include plumbing-is "common" space and is the condo associations responsibility.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sun Oct 22, 2017 6:39 pm

I've been hearing more and more that the basis of her liability (including me being able to reclaim the deductible) will stem from whether or not she was found negligent. It doesn't matter if water came from her unit because of a leak and caused extensive damage to mine - what matters is if she knew about the leak and did nothing about it or ignored it. If she had no clue the leak was occurring, even with the resulting damage to our unit, she will not be held liable because she was not negligent. Apparently this is the entire basis according to some. Now, I don't know if there are overriding factors here in CA state law or CCRs for the association but it seems that "liability per negligence' is a universal and overarching stop that her insurance company will use to deny the claim. Again, I'll probably be asking a lawyer specializing in these kinds of things tomorrow... and possibly more than one just to cross-check.

Anyone have experience or know something contrary to this?

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Sandtrap » Sun Oct 22, 2017 6:52 pm

jplee3 wrote:
Sun Oct 22, 2017 6:39 pm
I've been hearing more and more that the basis of her liability (including me being able to reclaim the deductible) will stem from whether or not she was found negligent. It doesn't matter if water came from her unit because of a leak and caused extensive damage to mine - what matters is if she knew about the leak and did nothing about it or ignored it. If she had no clue the leak was occurring, even with the resulting damage to our unit, she will not be held liable because she was not negligent. Apparently this is the entire basis according to some. Now, I don't know if there are overriding factors here like CA state law or CCRs but it seems that "liability per negligence' is a universal and overarching stop that her insurance company will use to deny the claim.

Anyone have experience or know something contrary to this?
This may add some relevance or not.
An esteemed retired trial lawyer once told me something he learned from his mentor many many decades ago, "You can sue for a ham sandwich. . .but can you collect?"
At some point it matters not the CCR's, HOA, state law, etc, but whether your dwelling has been restored to its original state by either your insurance company or your neighbors, so that life can resume. The issue seems to be the "deductible" at this point. . . . or. . "the ham sandwich."
Apologies for perhaps seeming obtuse or presumptive but hopefully helping give a larger, or other, overview of things.
I have owned apartments and high rises where this has happened, too often. It is indeed difficult to sort out and very upsetting to all parties.
Proving liability and negligence, and winning a case, and recovering damages, can boil down to who is willing to continue to pay legal fees.
I hope this resolves well.
Good luck,
j

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sun Oct 22, 2017 7:00 pm

Sandtrap wrote:
Sun Oct 22, 2017 6:52 pm
jplee3 wrote:
Sun Oct 22, 2017 6:39 pm
I've been hearing more and more that the basis of her liability (including me being able to reclaim the deductible) will stem from whether or not she was found negligent. It doesn't matter if water came from her unit because of a leak and caused extensive damage to mine - what matters is if she knew about the leak and did nothing about it or ignored it. If she had no clue the leak was occurring, even with the resulting damage to our unit, she will not be held liable because she was not negligent. Apparently this is the entire basis according to some. Now, I don't know if there are overriding factors here like CA state law or CCRs but it seems that "liability per negligence' is a universal and overarching stop that her insurance company will use to deny the claim.

Anyone have experience or know something contrary to this?
This may add some relevance or not.
An esteemed retired trial lawyer once told me something he learned from his mentor many many decades ago, "You can sue for a ham sandwich. . .but can you collect?"
At some point it matters not the CCR's, HOA, state law, etc, but whether your dwelling has been restored to its original state by either your insurance company or your neighbors, so that life can resume. The issue seems to be the "deductible" at this point. . . . or. . "the ham sandwich."
Apologies for perhaps seeming obtuse or presumptive but hopefully helping give a larger, or other, overview of things.
I have owned apartments and high rises where this has happened, too often. It is indeed difficult to sort out and very upsetting to all parties.
Proving liability and negligence, and winning a case, and recovering damages, can boil down to who is willing to continue to pay legal fees.
I hope this resolves well.
Good luck,
j
Thanks! In terms of seeming "obtuse or presumptive" - not at all! You're being straightforward without being *as-a-matter-of-factly* about it, which I appreciate.
I'm just trying to clear things up because I'm essentially hearing two sides of the story: one where my neighbor is fully "liable" even if she wasn't "negligent" or "intentionally" caused damage. And then the opposite: where my neighbor is not liable at all because she wasn't negligent or intentionally caused damage.

I'm just trying to sort through the noise and get to the truth of the matter at this point. Yes, the deductible would be nice to recover since it sucks we're going to end up paying for something that wasn't our fault and 'seemingly' was the fault of our neighbor. But if "negligence" determines liability and ultimately who is at "fault" in my mind, I guess it doesn't matter and shouldn't be a hill to die on.

All that said: would it be within reason to directly contact the neighbor, explaining to her the damage caused and what we've been going through, and ask her to consider repaying us back the deductible (either partially or in full)? Just a simple email appealing to her and nothing more.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Sandtrap » Sun Oct 22, 2017 7:14 pm

jplee3 wrote:
Sun Oct 22, 2017 7:00 pm

Thanks! In terms of seeming "obtuse or presumptive" - not at all! You're being straightforward without being *as-a-matter-of-factly* about it, which I appreciate.
I'm just trying to clear things up because I'm essentially hearing two sides of the story: one where my neighbor is fully "liable" even if she wasn't "negligent" or "intentionally" caused damage. And then the opposite: where my neighbor is not liable at all because she wasn't negligent or intentionally caused damage.

I'm just trying to sort through the noise and get to the truth of the matter at this point. Yes, the deductible would be nice to recover since it sucks we're going to end up paying for something that wasn't our fault and 'seemingly' was the fault of our neighbor. But if "negligence" determines liability and ultimately who is at "fault" in my mind, I guess it doesn't matter and shouldn't be a hill to die on.
Okay.
I've seen tenants and owners come to blows over a wet rug that was worth $40 at Costco. Wonderful neighbors for years turn into bitter enemies because of water leaks that nobody could prove liability or negligence. And, when it comes to "legaleze", everyone piles on which is like pouring gas on a fire.

My point was that even if the neighbor was 100% liable, left her sink on and it overflowed down to you, if they decide not to pay up, court costs and legal fees would far outweigh most damages. And, once winning a "judgement to collect" in court, you still are left to your own devices and resources$$$ to collect, which usually means eventually referring to a collection agency and at best getting 50% years later or never. In the meantime, you have to walk by your neighbor everyday in some instances. The human cost is far greater than the $40 Costco rug. And, zero 'sleep factor".

No neighbor wants to willingly cause damage in this way to another neighbor, let alone put themselves in a position of liability. But, accidents happen, insurance companies make things right on the physical side of things.

Maybe sometimes it goes down to an apple pie from Costco to a neighbor and leaving it at that. Sometimes there's reciprocity and a willingness to split that deductible in turn, not always, but it's nice when it happens.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sun Oct 22, 2017 7:34 pm

Sandtrap wrote:
Sun Oct 22, 2017 7:14 pm
jplee3 wrote:
Sun Oct 22, 2017 7:00 pm

Thanks! In terms of seeming "obtuse or presumptive" - not at all! You're being straightforward without being *as-a-matter-of-factly* about it, which I appreciate.
I'm just trying to clear things up because I'm essentially hearing two sides of the story: one where my neighbor is fully "liable" even if she wasn't "negligent" or "intentionally" caused damage. And then the opposite: where my neighbor is not liable at all because she wasn't negligent or intentionally caused damage.

I'm just trying to sort through the noise and get to the truth of the matter at this point. Yes, the deductible would be nice to recover since it sucks we're going to end up paying for something that wasn't our fault and 'seemingly' was the fault of our neighbor. But if "negligence" determines liability and ultimately who is at "fault" in my mind, I guess it doesn't matter and shouldn't be a hill to die on.
Okay.
I've seen tenants and owners come to blows over a wet rug that was worth $40 at Costco. Wonderful neighbors for years turn into bitter enemies because of water leaks that nobody could prove liability or negligence. And, when it comes to "legaleze", everyone piles on which is like pouring gas on a fire.

My point was that even if the neighbor was 100% liable, left her sink on and it overflowed down to you, if they decide not to pay up, court costs and legal fees would far outweigh most damages. And, once winning a "judgement to collect" in court, you still are left to your own devices and resources$$$ to collect, which usually means eventually referring to a collection agency and at best getting 50% years later or never. In the meantime, you have to walk by your neighbor everyday in some instances. The human cost is far greater than the $40 Costco rug. And, zero 'sleep factor".

No neighbor wants to willingly cause damage in this way to another neighbor, let alone put themselves in a position of liability. But, accidents happen, insurance companies make things right on the physical side of things.

Maybe sometimes it goes down to an apple pie from Costco to a neighbor and leaving it at that. Sometimes there's reciprocity and a willingness to split that deductible in turn, not always, but it's nice when it happens.
Yea, I don't want to have to go down the legal road with all this or even small claims court. Either way, it seems like the "negligence supersedes liability" rule would win anyway.
I am wanting to just speak with lawyers within the context of the legal plan I'm paying for through my company, just to cover bases and confirm everything. And I might as well take advantage of it since I am paying for it.

Anyway, I'll probably end up sending her an email after everything in the case that the deductible doesn't come back. It's true that $500 isn't a ton of money at the end of the day [for most people], but it would be nice to know that we at least tried recovering it FWIW; especially when we weren't at any fault. And I don't see the harm in drafting up a simple email asking for this - it doesn't take much time and the worst that could happen is that she says "No"

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Pajamas » Sun Oct 22, 2017 7:59 pm

If the water line going into the refrigerator was leaking outside of the wall, the owner is likely liable, not the HOA. That would probably also be true if it were leaking inside the wall but the line was not part of the original construction and had been added or modified by the current or a previous unit owner.

But this is a legal question and it can't be answered accurately without knowing what the documents governing your ownership say about it as well as the laws and regulations that apply.

What you should be concerned about as far as the $500 is that it looks like she is trying to avoid having to pay the $500 and plans to sell and leave without doing so. I'm not sure what you can do about that.

As has already been stated, the problem is that if you have to pay a lawyer or otherwise spend much time or money pursuing $500, it's not worth it, rationally.

You might ask the HOA board or manager for advice on how to handle this based on what they have seen previously.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by macheta » Sun Oct 22, 2017 8:03 pm

Most likely a stressful confrontation would occur if she ignored the email or responded with no. I would just let the insurance deal with the problem.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sun Oct 22, 2017 8:10 pm

Pajamas wrote:
Sun Oct 22, 2017 7:59 pm
If the water line going into the refrigerator was leaking outside of the wall, the owner is likely liable, not the HOA. That would probably also be true if it were leaking inside the wall but the line was not part of the original construction and had been added or modified by the current or a previous unit owner.

But this is a legal question and it can't be answered accurately without knowing what the documents governing your ownership say about it as well as the laws and regulations that apply.

What you should be concerned about as far as the $500 is that it looks like she is trying to avoid having to pay the $500 and plans to sell and leave without doing so. I'm not sure what you can do about that.

As has already been stated, the problem is that if you have to pay a lawyer or otherwise spend much time or money pursuing $500, it's not worth it, rationally.

You might ask the HOA board or manager for advice on how to handle this based on what they have seen previously.
In this case the water line was definitely leaking outside of the wall - it was leaking where the plastic part going into the fridge connects with the length of copper tubing the contractor/plumber who installed it used to connect/extend from the water supply valve.

The question as regarding whether or not she's "liable" though seems to hinge on whether or not she was found "negligent" in any way per what many are implying. In this case, "liability" doesn't seem to depend as much on whether or not the water came from her unit as much as if she knew about it and did nothing about it. In this case, it *seems* that she wasn't aware of the leak as it wasn't visible until the fridge was pulled out by the plumber (and presumably soon after he fixed it).
I'm planning on calling the HOA and hoping speak with our property manager directly tomorrow just to confirm all this.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by scorcher31 » Sun Oct 22, 2017 8:24 pm

I doubt an email would help as you have tried to contact her a few times. It’s up to your insurance to resolve this now and you can advocate for your self with your insurance company. I find it very odd your insurance company told you to get her insurance info and contact her company yourself. They should be working on this themself.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Pajamas » Sun Oct 22, 2017 8:30 pm

jplee3 wrote:
Sun Oct 22, 2017 8:10 pm
In this case the water line was definitely leaking outside of the wall - it was leaking where the plastic part going into the fridge connects with the length of copper tubing the contractor/plumber who installed it used to connect/extend from the water supply valve.

The question as regarding whether or not she's "liable" though seems to hinge on whether or not she was found "negligent" in any way per what many are implying. In this case, "liability" doesn't seem to depend as much on whether or not the water came from her unit as much as if she knew about it and did nothing about it. In this case, it *seems* that she wasn't aware of the leak as it wasn't visible until the fridge was pulled out by the plumber (and presumably soon after he fixed it).
I'm planning on calling the HOA and hoping speak with our property manager directly tomorrow just to confirm all this.
I'm certainly not a lawyer so I wouldn't comment on whether or not the unit owner is liable but it certainly doesn't sound like the HOA would be then, and there may or may not need to be negligence involved for the unit owner to be liable. If negligence is required for liability, then it's likely not worth pursuing.

Most people will fix a leak if they know about it, but that is not always the case.

I had a problem once with an upstairs neighbor with a drippy window air conditioner when the bucket that they used to catch the drips was not emptied, which happened several times. This was a rental building so I reported it to the landlord each time.

Also had a problem with an upstairs neighbor who installed a plumbing fixture and it leaked. I was told it was fixed and it didn't leak for several years. Then it leaked again a few years after they sold their apartment to someone else. I found out that they had just stopped using that plumbing fixture and the new owner had also not used it but eventually someone who didn't know about the leak did use it. The leak was due to a truly incompetent fixture installation that was not visible for the plumbing inspector or else had been self-certified by the plumber.

I would say that the neighbors were negligent in both cases, but it would have been difficult to prove.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Mudpuppy » Sun Oct 22, 2017 9:08 pm

jplee3 wrote:
Sun Oct 22, 2017 8:10 pm
The question as regarding whether or not she's "liable" though seems to hinge on whether or not she was found "negligent" in any way per what many are implying. In this case, "liability" doesn't seem to depend as much on whether or not the water came from her unit as much as if she knew about it and did nothing about it. In this case, it *seems* that she wasn't aware of the leak as it wasn't visible until the fridge was pulled out by the plumber (and presumably soon after he fixed it).
Let's put this in a different context and perhaps it will illuminate the situation. What if there was a pinhole leak in the pipes in the wall? That happens from time to time and it is not anyone's fault when it happens, but it can cause the same level of water damage to your unit and lower units. Would you want the neighbor below you constantly asking for $500 due to a plumbing part failure?

Sometimes things just break and no one in particular is at fault. And it's not always obvious about where things break when they break (look up the noise in the attic thread here for a good example of that one). Part of home ownership is cleaning up after the mess when this does happen. It seems like you're investing an awful lot of time and energy into $500. In the overall scheme of home repairs, that's a pretty cheap repair. Just wait until there's a sewage issue to see the water damage and repair bills really add up.

I'd recommend just letting the insurance company sort out the negligence factor and not spending more time and energy on this.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by boglerdude » Sun Oct 22, 2017 10:20 pm

I agree with OP that it's worth understanding.

Example: you're driving carefully but hit ice, then hit another car, you are not financially responsible?

Maybe the upstairs neighbor does not have proof it was professionally installed. Because it should not have been leaking...

Regarding HOAs, they do try and push these messy problems on the owners, which is an argument for having a "good" insurance company that will fight for you. The area under the paint is HOA property and they should pay to fix it. Then maybe bill the unit that caused the problem, if they want to risk court over it.

OP, you could send that email and if it fails, a demand for payment letter (1st step toward small claims court). You could offer to split the deductible if your 1st polite request is denied.

Let us know what your lawyers say :)

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Sun Oct 22, 2017 11:01 pm

Mudpuppy wrote:
Sun Oct 22, 2017 9:08 pm
jplee3 wrote:
Sun Oct 22, 2017 8:10 pm
The question as regarding whether or not she's "liable" though seems to hinge on whether or not she was found "negligent" in any way per what many are implying. In this case, "liability" doesn't seem to depend as much on whether or not the water came from her unit as much as if she knew about it and did nothing about it. In this case, it *seems* that she wasn't aware of the leak as it wasn't visible until the fridge was pulled out by the plumber (and presumably soon after he fixed it).
Let's put this in a different context and perhaps it will illuminate the situation. What if there was a pinhole leak in the pipes in the wall? That happens from time to time and it is not anyone's fault when it happens, but it can cause the same level of water damage to your unit and lower units. Would you want the neighbor below you constantly asking for $500 due to a plumbing part failure?

Sometimes things just break and no one in particular is at fault. And it's not always obvious about where things break when they break (look up the noise in the attic thread here for a good example of that one). Part of home ownership is cleaning up after the mess when this does happen. It seems like you're investing an awful lot of time and energy into $500. In the overall scheme of home repairs, that's a pretty cheap repair. Just wait until there's a sewage issue to see the water damage and repair bills really add up.

I'd recommend just letting the insurance company sort out the negligence factor and not spending more time and energy on this.
I haven't asked her for anything except her insurance information at this point. The insurance co said that if I have the information, it would be great to get it to them sooner. If not, they can get it themselves I'm sure. I'm just trying to do my part and due diligence where it may help expedite things is all. I figure with things like this, it's similar to when you exchange insurance information after getting into a car accident. Of course, it's not apples to apples but I figure if both parties have insurance they'd want to exchange them. It seems odd that one party would stall or avoid giving that info.

Also, I've *heard* pipes behind the wall is considered outside the responsibility of the homeowner in the context of condos. In this case, the leak came from inside her unit, which is why I think there are a number of people who still call her liable. Of course, if negligence supersedes liability as far as how insurance (and the courts) see it, I guess it doesn't matter.

We've actually gone through this before when our washing machine that flooded another portion of the house. It was a huge PITA but we had to take care of it. It was an inconvenience of course and sucked but this time is worse because the damage affects our bedroom and kitchen and we have two kids (before we had no kids so it wasn't as big of a deal working around all that... now we have to be careful to keep them away from the exposed nails/wall/areas where the baseboard was, etc). Yea, we have to just "suck it up and deal with it" but that doesn't lessen the fact that this just sucks and any other recourse we can get (especially because this wasn't our fault) would help.I don't feel like I'm going through that much trouble at this point - like I said, we're just trying to do our part and as much due diligence as we can to make things right.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by motorcyclesarecool » Mon Oct 23, 2017 5:48 am

This is the sort of thing that is made for small claims. Slap a lien on it while it’s still in her name. Act quickly.
Understand that choosing an HDHP is very much a "red pill" approach. Most would rather pay higher premiums for a $20 copay per visit. They will think you weird for choosing an HSA.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by mouses » Mon Oct 23, 2017 6:04 am

I would let your insurance company get her insurance information. They must have a way to do this, and she obviously isn't going to cooperate. I wonder if she even has insurance. If the insurance company can get her insurance company to pony up the $500, fine, but you may have to just kiss the $500 goodbye.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Mon Oct 23, 2017 10:59 am

mouses wrote:
Mon Oct 23, 2017 6:04 am
I would let your insurance company get her insurance information. They must have a way to do this, and she obviously isn't going to cooperate. I wonder if she even has insurance. If the insurance company can get her insurance company to pony up the $500, fine, but you may have to just kiss the $500 goodbye.
Yea, I think they probably will at this point. The claims adjuster has to close his side of things with providing me an estimate or having his contractor do the work so we're just waiting on that. My realtor friend who's in commercial real estate law was making the same guess as you about her possibly not having insurance. Although, my neighbor kept saying "I don't want to do anything until I get my insurance involved" - so who knows? What happens if she is uninsured though? One of my other neighbors had something similar happen to them (but the damage sounded like it was even greater). She said the owner of the upstairs unit was renting to tenants when this happened and that the owner also didn't have insurance. She contacted the HOA and then the fire dept (because there was water dripping through the light fixture!) and they had to come out and bust the door down and shut the water main off. The upstairs owners were very nice and cooperative about it, and basically had everything (all remediation and repairs) billed directly to them. It must have cost an arm and a leg...

Anyway, at this point I probably will be out the $500 like you and several others have been pointing out. I'll just have to hope that somehow they can reclaim it through subrogation and I get "lucky."
The 'last resort' will be sending her an email (already drafted) with pictures of the damage and appealing to her empathy to get her to help... she probably won't care but at least we'll know we tried.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by Steelersfan » Mon Oct 23, 2017 2:20 pm

Ruger wrote:
Sun Oct 22, 2017 12:45 am

Our responsibility is anything that happens inside the interior walls. Anything that is beyond that-which would include plumbing-is "common" space and is the condo associations responsibility.
Our condo association has the same line of demarcation. We describe it as "the unit owner is responsible for anything from interior paint on into the unit". The condo association covers everything outside of the paint.

Since this leak occurred inside her unit, our condo association would say the unit owner above is liable for repairs in the lower unit. As far as I know, in our state being negligent doesn't enter into the discussion, and we deal with one of these every few years. Other states may be different.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Mon Oct 23, 2017 2:48 pm

Steelersfan wrote:
Mon Oct 23, 2017 2:20 pm
Ruger wrote:
Sun Oct 22, 2017 12:45 am

Our responsibility is anything that happens inside the interior walls. Anything that is beyond that-which would include plumbing-is "common" space and is the condo associations responsibility.
Our condo association has the same line of demarcation. We describe it as "the unit owner is responsible for anything from interior paint on into the unit". The condo association covers everything outside of the paint.

Since this leak occurred inside her unit, our condo association would say the unit owner above is liable for repairs in the lower unit. As far as I know, in our state being negligent doesn't enter into the discussion, and we deal with one of these every few years. Other states may be different.
Are you in Pittsburgh by chance? :D

BTW: they sent me a searchable/copyable PDF which makes things much easier. The new property mgr referred me to the following section, not addressing the void space between units but just reiterating that this is a homeowner to homeowner issue that needs to be resolved amongst ourselves - they are unwilling to place liability/blame on her and keep deferring to the CCR. It seems a bit ambiguous but maybe I'm glossing over something...:
Section 10.01. Repair and Maintenance by Owners.
Subject to the provisions of this Declaration, including without
limitation, the Article entitled "Architectural Control", each
Owner shall maintain, repair, replace and restore in a clean,
sanitary, neat, safe, orderly and attractive condition:

(a) His Unit Appurtenances, including without
limitation, the glass doors, if any, and windows (including window
screens and cleaning the interior and exterior of the windows) of
his Unit;

(b) The plumbing, electrical, air conditioning (if
any), utilities and heating systems servicing his Unit and located
within or underneath the perimeter of the exterior bearing walls
of his Unit or within or under the floors or ceilings of the Unit,
and all appliances and equipment located in the Unit;

(c} All'portions of his Unit, including without
limitation, the interior walls, ceilings, floors and doors;

(d) His Garage and Special Garage doors, including
without limitation, Garage and Special Garage door opening
systems, hinges, springs and other parts of the door mechanism;
provided that the Association shall maintain and replace the
painting on the exterior surface of Garage and Special Garage
doors;

(e) His Yard, including without limitation, all
landscaping and irrigation and drainage facilities and systems
located within the Yard;

(f) His Telephone Wiring;
(g) His Deck, including without limitation, the
floors and ground surfaces of his Deck and the interior surface of
any fence or wall forming a boundary of his Deck; and

(h) All portions of his Exclusive Use Common Areas
occasioned by the presence of wood destroying pests or organisms.
Actually, would it be subsection C: "All portions of his Unit, including without
limitation, the interior walls, ceilings, floors and doors;" that indicates this is fully my responsibility? It still doesn't seem to address damage caused by others, however....
Last edited by jplee3 on Mon Oct 23, 2017 2:58 pm, edited 1 time in total.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Mon Oct 23, 2017 2:56 pm

The section I posted doesn't seem to directly address damage/destruction to one unit caused by another unit. I'm having trouble identifying anything regarding that but the closest I could find is this:
Section 13.04. Repair of Units.
(a) If improvements within the interior of a Unit
are damaged, but the Condominium Building within which the Unit is
located is not partially or totally destroyed, the Owner of the
Unit shall Repair the damage at his individual expense, and if the
damage is covered by insurance maintained by the Association, the
Board shall promptly distribute to any such Owner the proceeds of
such insurance.

(b) If improvements within the interior of a Unit
are damaged, the Condominium Building within which the Unit is
located is partially or totally destroyed and the Repair of the
Condominium Building is to proceed, the following provisions shall
be applicable:

(i) If the damage to the improvements is
covered by insurance maintained by the Association, the Board
shall either (A) treat any such damaged improvements as "Common
Area" and proceed with its Repair in accordance with the terms and
procedures set forth in this Article or (B) promptly distribute to
any such Owner the proceeds of such insurance, in which case the
damage shall be Repaired by and at the individual expense of the
Owner.of the Unit.

(ii) If the damage to the improvements is not
covered by insurance maintained by the Association, the damage
shall nevertheless be Repaired by and at the individual expense of
the Owner of the Unit.

(c) If improvements within the interior of a Unit
are damaged, the Condominium Building within which the Unit is
located is partially or totally destroyed and the Repair of the
Condominium Building is not to proceed, the damaged improvements
shall be treated as "Common Area" under Section 13. 03.
(d) All distributions of insurance proceeds to
Owners under this Section shall be used for the Repair of damaged
improvements within the interior of the Owners' Units, subject to
the prior rights of Mortgagees whose interests may be protected by
Association insurance policies. All such Repairs shall be
performed by the Owners as promptly as practical and in a lawful
and worlananlike manner.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by SimonJester » Mon Oct 23, 2017 6:11 pm

You have already filed a claim against your own insurance policy. So now I would let your insurance company do their job and go after the responsibly party. They should recover your deductible from the other party or their insurance. They have the legal resources to fight this on your behalf.
"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." - Benjamin Franklin

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Mon Oct 23, 2017 7:15 pm

SimonJester wrote:
Mon Oct 23, 2017 6:11 pm
You have already filed a claim against your own insurance policy. So now I would let your insurance company do their job and go after the responsibly party. They should recover your deductible from the other party or their insurance. They have the legal resources to fight this on your behalf.
We'll see. I trust they'll do their best at this point but my claims adjuster didn't seem as confident about recovering/reclaiming costs. The HOA has also gotten involved to some extent and is sending out a follow-up letter to the neighbor (I think this is out of obligation anytime a leak is reported). The new property manager just asked for documentation/invoicing of the plumber/company who came out initially and found the leak lol... not sure why she'd be asking me for that and not my neighbor. I gave them the name of the plumber/company though so she can get in touch directly.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by SimonJester » Tue Oct 24, 2017 7:26 am

jplee3 wrote:
Mon Oct 23, 2017 7:15 pm
SimonJester wrote:
Mon Oct 23, 2017 6:11 pm
You have already filed a claim against your own insurance policy. So now I would let your insurance company do their job and go after the responsibly party. They should recover your deductible from the other party or their insurance. They have the legal resources to fight this on your behalf.
We'll see. I trust they'll do their best at this point but my claims adjuster didn't seem as confident about recovering/reclaiming costs. The HOA has also gotten involved to some extent and is sending out a follow-up letter to the neighbor (I think this is out of obligation anytime a leak is reported). The new property manager just asked for documentation/invoicing of the plumber/company who came out initially and found the leak lol... not sure why she'd be asking me for that and not my neighbor. I gave them the name of the plumber/company though so she can get in touch directly.
So she either has insurance and your insurance company will recover from her insurance company, or she does not have insurance and your insurance company will have to sue her in court for the damages, in which they should also be asking for your deductible as a part of those damages. My point is your insurance company will have their own set of lawyers that will go over all the HOA documentation and determine if they have a case against her...

So at the very least before you file a small claims suite you should speak to your insurance company about their plans...
"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." - Benjamin Franklin

jplee3
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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by jplee3 » Tue Oct 24, 2017 6:30 pm

SimonJester wrote:
Tue Oct 24, 2017 7:26 am
jplee3 wrote:
Mon Oct 23, 2017 7:15 pm
SimonJester wrote:
Mon Oct 23, 2017 6:11 pm
You have already filed a claim against your own insurance policy. So now I would let your insurance company do their job and go after the responsibly party. They should recover your deductible from the other party or their insurance. They have the legal resources to fight this on your behalf.
We'll see. I trust they'll do their best at this point but my claims adjuster didn't seem as confident about recovering/reclaiming costs. The HOA has also gotten involved to some extent and is sending out a follow-up letter to the neighbor (I think this is out of obligation anytime a leak is reported). The new property manager just asked for documentation/invoicing of the plumber/company who came out initially and found the leak lol... not sure why she'd be asking me for that and not my neighbor. I gave them the name of the plumber/company though so she can get in touch directly.
So she either has insurance and your insurance company will recover from her insurance company, or she does not have insurance and your insurance company will have to sue her in court for the damages, in which they should also be asking for your deductible as a part of those damages. My point is your insurance company will have their own set of lawyers that will go over all the HOA documentation and determine if they have a case against her...

So at the very least before you file a small claims suite you should speak to your insurance company about their plans...
She does have insurance. They were supposed to call me but I'm not sure what's going on... in any case, she seems more cooperative now that she's presumably no longer "sick/ill" but it could be that her realtor is putting the pressure on her. The HOA will also be contacting her for her cooperation.

Also, the buyer was actually outside our place one of the days that the remediation company or plumber were here so he actually stopped by today and asked me what was going on. So he definitely knows what happened. I'm not sure if I'm supposed to disclose to him about the wet spot that was found under the fridge - I don't know whether or not the neighbor has done anything about it but all I know is what the water damage guy inspecting the unit said.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by boglerdude » Tue Oct 24, 2017 7:41 pm

Another way to think about what the HOA covers is, if the building burns down, what will the HOA rebuild? Will they repaint and recarpet? Our HOA insurance policy says "betterments and improvements" with a couple exclusions in the CC&Rs for telephone wiring.

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Re: Water damage from upstairs neighbor - insurance, subrogation, other recourse?

Post by wander » Tue Oct 24, 2017 8:51 pm

A friend of mine was the upstairs neighbor and got the note from the tenant lived directly below him complaining about the leaking. The leak was from the bathroom area. He took action right away and had his insurance paid for fixing the ceiling of the unit below. He felt that it was his responsibility. Case was closed after a few days.

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