Q&A: Collateral Damages

Q I live in a top floor apartment of a condo building. There has been a leak from the roof for a few years. The condo has been trying to stop the source of the leak over that time period, to no avail. They have now hired a roofer, who has broken through my ceiling and found just where the water is coming in (from 3 different places). Because the water has been coming in for so many years, the condo will be demolishing the damaged portion of my ceiling, at least one wall, and the interior of a closet. I have my own wired alarm system that runs along the ceiling area that will be demolished. The alarm system therefore will have to be replaced also. My question is: who is responsible for the cost of reconstructing my alarm system after all the other work is done?

—Alarmed Unit Owner

A “This question is extremely common and involves the delineation between responsibilities of the association and unit owners,” says David R. Dahan, a shareholder in the Community Association practice group of Parker McCay in Marlton. “The association is responsible to maintain, repair and replace the common elements. The roof, which caused damage to your property, would be considered part of the common elements. Generally, the unit owner is responsible to repair any damage to his or her unit. However, because the damage to your unit was caused by the condition of a common element, the issue becomes whether the association was negligent in maintaining the roof.

“If the association was negligent in maintaining the roof, then it should be responsible for the cost of reconstructing your alarm system because that would not have been necessary had the association not been negligent. Support for this can be found under the New Jersey Condominium Act which provides that a ‘unit owner shall have no personal liability for any damages caused by the association or in connection with the use of the common elements.’ New Jersey courts have also recognized that the unit owner has a right to maintain legal action for compensation against the wrongdoer for defective conditions in the common elements, which result in damages to the unit and personal property.

“The association may argue that it was not negligent, but rather its vendors failed to detect the cause of the leak. I do not believe such an argument relieves the association of its responsibility to pay for the cost to reconstruct your alarm. Rather, it would appear that the association would have a claim against the vendor for reimbursement of that cost. It seems to me that if a roofer was able to discover the source of the leak, this discovery could have been made earlier by the association or its previous vendors.

“Lastly, another means of recourse is to have the association file a claim under its insurance policy for the damage. The association may be able to avoid having to directly reimburse you for reconstruction of your alarm system if its insurance carrier provides coverage for the claim.”

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