When a water pipe bursts in a condominium project who is responsible for any damage? It's not always easy to determine.
Is the pipe part of a unit or the common elements? A useful first step will be to identify who owns the pipe in the location where it burst. Each part of a condominium project is either a "unit" owned by an individual owner or a "common element" owned by all the unit owners collectively. The specific parts of the project constituting units or common elements are not necessarily the same for every project and are defined by statute and the recorded declaration (which includes the plat or map). As a general rule, a unit is a designated airspace "from the studs in" and common elements are everything "from the studs out," including the studs themselves. The water system in any wall outside a unit is generally a common element.
It is not well-defined under Colorado law, nor in many declarations, where exactly the water system ceases being a common element and becomes part of the unit. For instance, is it at the point where a pipe passes into the unit or the point where the pipe connects to a plumbing fixture such as a sink? This could make a big difference in determining responsibility if a pipe bursts in an area of uncertain ownership. If the declaration is unclear, it's a good idea for associations to address this issue before a problem occurs.
What caused the pipe to burst? Once it is determined whether the pipe at issue is part of a unit or common element, it is next necessary to determine what caused the pipe to burst. If a person intentionally or negligently caused the damage, that person can be liable. But, just because a person (including an association) owns or controls the pipe at issue doesn't necessarily mean that person is responsible for damage caused by the pipe bursting if the person did nothing wrong. Not every unfortunate event leads to liability. In some cases, the cause may be obvious such as a nail driven into the pipe by an owner. In other cases, the cause may be less obvious such as the owner not adequately heating the unit and thereby causing the pipes to freeze, the owner or association not performing necessary maintenance, or a contractor doing a poor job. Liability is often disputed and, absent another resolution, may need to be resolved in court.
Who is responsible for maintenance of the pipe? To the extent that a pipe bursts because it was not adequately maintained, it will be necessary to determine who was responsible for the maintenance and is therefore liable for the damage. Generally, owners are responsible for maintaining their units and the association is responsible for maintaining the common elements, but this arrangement can be changed by the declaration. In the absence of a determination that anyone else was at fault, the maintenance responsibility for any affected area of the project will dictate who must repair any damage to the area.
It is noteworthy that for those projects created after July 1, 1992, the association and unit owners are afforded a statutory right to enter each unit as necessary to carry out their respective maintenance obligations. For earlier projects, these rights might exist under the declaration or by implication. Many associations create a "maintenance chart" so there are no misunderstandings about who is responsible for each part of the project.
In sum, when a pipe bursts, a person shown to be the cause will be responsible for the damage. If no particular cause is determined, the standard maintenance obligations will determine responsibility.
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, emphasizing real estate, business and litigation. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.