Q. I am a trustee at a 50-unit condominium association in Massachusetts and I have a question.
There are two condominium owners involved. One owner lives above the other owner. The upstairs owner had a minor leak from a shower head. It caused minor damage to the ceiling of the downstairs unit owner (small water ring around a light). Who is responsible for repairing (if it is necessary) and bleaching the white ceiling to remove the stain? I thought I recently read in a newsletter that the downstairs unit owner was responsible for repairing and bleaching the ceiling even though the damage was caused accidentally by the upstairs owner’s shower. Can you help me understand the legal answer so I can try and resolve this issue?
—Staring at the Ceiling
A. “Based on the circumstances described, you have an issue between two owners (as opposed to an issue involving the association),” says Gary M. Daddario, partner in the Braintree, Massachusetts firm of Marcus, Errico, Emmer & Brooks, P.C. “These situations sometimes arise and become somewhat similar to disputes that may be had between two neighbors with single-family homes.
“I was previously involved in a Massachusetts case which I think was analyzed by the court in typical fashion. The court made inquiry as to whether or not the upstairs unit owner was negligent in some manner. The court looked at questions like, ‘When did the upstairs owner become aware of the problem? Once they knew about it, what was their response? Should they have [responded] any sooner? Was there any lack of normal maintenance which would have avoided the problem?’ In that case, the court concluded that a toilet leaked through no fault of its owner and that the owner took appropriate measures to fix it as soon as they became aware.
“So, the court explained, while the circumstances are somewhat tragic, they do not present a case for legal recovery. Based on the information provided, I believe your case would be analyzed along the same lines. Other options would include the possibility of the damage being covered by either owner’s H06 insurance policy. The final answer as to those options would depend on the existence of such insurance and the terms of the policies, as well as the deductible amounts and the dollar value of the damage.”