Understanding Legal Liability for Condominium Association and Unit Owners

  • Print
by Christopher J. Boggs, CPCU, ARM, ALCM

Legal liability is liability imposed by the courts or by statute on any person or entity responsible for the financial injury or damage suffered by another person, group, or entity. Legal obligations, or legal liability, can arise from intentional acts, unintentional acts, or contracts.

When the potentially liable parties are mutual beneficiaries and users/occupiers of the same location, the need for each party to be properly insured is of paramount importance. Residential condominium associations and individual unit owners are prime examples of this need to close all gaps in liability protection.

Essentially there are three legal liability possibilities following bodily injury or property damage at a residential condominium property. Legal liability is placed on: 1) the condominium association; 2) the unit owner; or 3) jointly on the association and the unit owner.

When legal liability is assigned to only one party, whether it be the association or the unit owner, defining coverage is easy. The cost of the bodily injury or property damage is covered, subject to policy limits, by the at-fault party’s insurance policy:

  • The association’s commercial general liability (CGL) coverage pays if the association is found to be solely negligent; or
  • The unit owner’s HO-6 pays if legal liability is solely placed on the owner.

The unit owner’s liability coverage (most commonly provided by the HO-6) is generally first dollar protection. Likewise, the association’s CGL may be written providing first dollar protection; however, many associations utilize a deductible or self-insured retention (SIR). If the association’s deductible is high, or there are several liability claims against the association, the unit owner(s) may suffer an out-of-pocket expense because of the association’s decision to use a deductible or SIR.

Unit Owner Assessments

When the association is subject to a deductible or SIR, it generally collects the resulting out-of-pocket expense by assessing all the unit owners a share of the deductible/SIR (however such division is calculated). The unendorsed HO-6 provides the insured with $1,000 for such assessment with two main requirements:

  1. The loss must be one that would have been covered under the HO-6; and
  2. $1,000 is all the policy will pay for assessment in aggregate (regardless of the number of assessments for losses occurring during that policy period).

Obviously, the association’s choice of a deductible/SIR can be detrimental to the unit owner. But, the unit owner does have the opportunity to increase the coverage for assessment by purchase of the HO 04 35 (Supplemental Loss Assessment Coverage). However, the attachment of this endorsement may not solve the unit owner’s deductible/SIR assessment problem – depending on the endorsement’s edition date approved and used in the unit owner’s state.

Attaching Insurance Services Office’s (ISO’s) HO 04 35 allows the insured unit owner to incrementally increase the loss assessment limit up to $50,000 (relatively inexpensively). But the limit of coverage for an assessment related to the association’s use of a deductible/SIR has been historically limited to $1,000 – even when the HO 04 35 endorsement was attached. This limitation was removed in ISO’s 05/11 edition of the endorsement. The HO 04 35 05 11 extends the full amount of loss assessment coverage purchased to all assessments, including those resulting from the association’s use of a deductible/SIR.

However, the new endorsement may not yet be approved in the insured unit owner’s state (and may not be for some time), or the insurance carrier providing coverage may not be using the new wording (depending on the rules of the state). Agents cannot make assumptions, the insured’s policy must be reviewed to confirm which loss assessment wording is in use or available. The difference between the old and new endorsement language can mean hundreds or even thousands of dollars to the properly insured unit owner’s bank account.

Joint Liability

If both the association and unit owner are held jointly liable for the injury or damage, court involvement will likely be required. The first problem to be addressed is the amount of liability assignable to each party. Once liability has been assigned, the second question to be considered is – what happens when liability limits differ (which they most likely will)?

Both questions can and might be governed by the legal concept of joint-and-several liability, along with how each state applies this concept. Losses are shared equally or unequally among tortfeasors based on the facts of the case, each tortfeasor’s level of “fault,” and statute. The concept of joint-and-several liability is designed to assure that the victim is fully compensated for their injury or loss.

Joint means that any one tortfeasor can be held responsible for the entire amount (each tortfeasor is responsible for all others). Several means that each is responsible only for its share of the fault. Each state applies the joint-and-several liability differently:

  • Nine states apply pure joint-and-several laws: Each defendant is responsible for the entire amount regardless of its amount of fault;
  • 27 states utilize modified joint-and-several laws: One specific tortfeasor is potentially responsible for the entire only if they are judged at-fault beyond a specific level or amount. Additionally some of these states bar recovery if the injured party is found to be a certain percentage liable; and
  • 14 states employ pure several laws: Each party shares the financial consequences based on its amount of fault.

Generally, there is a wide gap between the association’s CGL limits and the unit owner’s HO-6 liability limits; maybe as much as $900,000 ($1 million in the CGL vs. $100,000 in the HO-6). Because of this gap, the association may be called upon to cover more than their share of damages in pure and modified joint-and-several liability states. To avoid this potential gap, the association may decide to require each unit owner to carry relatively high limits of liability coverage (maybe even an umbrella).

Many state laws related to condominium ownership prevent an association from subrogating against the unit owner if the unit owner’s negligence leads to a liability loss. Again, this could be very costly for the association from an insurance perspective; and it’s even more costly if the association does not have enough protection to cover the cost of the injury or damage.

Deciding Which Party is Legally Liable

Disclaimer: This section shall not and cannot be construed as legal advice. Any ruling of negligence and legal liability must be made in a court of competent jurisdiction. The following is simply a guideline that may be useful in determining which party and therefore policy may be called upon to cover the cost of injury or damage suffered by a third party.

Where did the Injury/Damage Occur?

Arriving at the more correct answer to the question: which party (the association or the unit owner) may be ultimately responsible for paying the cost of injury or damage suffered by a third party? Knowing where the injury occurred provides clues as to who is most likely going to be held financially responsible.

Like analysis of the property coverage, analysis of the liability coverage requires knowledge of and a deep understanding of three definitions: common elements, limited common elements, and unit property. The definition of each indicates which party (the association or the unit owner) is responsible for the care and upkeep of the property; and also who is responsible for any injury or damage suffered on the property.

  • Common elements are owned by and benefit, to some extent, all members of the association. Land (including trees, shrubs, plants, etc.), parking lots, association roads, and the building’s structural foundations and load-bearing walls are examples of common elements. Also included in this definition are club houses, pool houses, pools, fences, gates, playground equipment, tennis courts, and other property owned by and allocated to all unit owners.
  • Limited common elements are beneficial to more than one but fewer than all unit owners. Common hallways or corridors providing access to several units, walls and columns containing electrical wiring or sprinkler piping serving or protecting multiple units, or a plenum enclosure providing heating and cooling to multiple units are examples. Doorsteps, stoops, decks, porches, balconies, patios, exterior doors and windows, or other fixtures designed to serve a single unit but located outside the unit’s boundaries are often categorized as limited common elements because the appearance and safety of these fixtures directly affects multiple unit owners although connected to just one unit.
  • Unit property is defined by the association’s declarations or statute and is limited to and benefits only the unit owner. The inside of the exterior walls, interior partition walls, counter tops, cabinetry, plumbing fixtures, appliances, and any other real property confined to the unit are examples. The definition of unit property can vary widely with no universal designation.

Injury or Damage on or Caused by a ‘Common Element’

Because a common element benefits all unit owners, the association is nearly always going to be ultimately responsible for covering the cost of any bodily injury or property damage that occurs in or on a common element. This is true even if a unit owner in some way contributed to the injury or damage.

When written correctly, and depending on the state, condominium liability policies generally include unit owners as insureds or name them as additional insureds using the CG 20 04 (Additional Insured – Condominium Unit Owners). This endorsement grants all unit owners additional insured status for liability arising out of any portion of the premises not reserved for the unit owner’s exclusive use or occupancy. This means that the unit owner is an insured for any injury or damage on or caused by a common element. Further, as an insured, the insurance carrier cannot seek recovery from the unit owner if he/she is somehow responsible for causing the injury or damage on the common element.

Injury or Damage on or Caused by a ‘Limited Common Element’

Assigning financial responsibility for an injury or accident occurring on a limited common element is a little more complicated. Largely, the rules that apply to common elements apply to limited common elements (meaning the association will most commonly be held financially responsible); however, there are gray areas.

Of particular interest and problem are those defined limited common elements that benefit only one unit owner, such as stairs, stoops, balconies, decks, etc. Although these elements benefit one unit owner, often the association is responsible for the care and maintenance of these features. Might there be joint negligence or liability assignable to both parties?

Picture a unit owner and his guests sitting on the deck enjoying the evening. They decide to move the party inside nearer the food. As one of the guests crosses the threshold from the deck into the unit he trips on “something” and breaks his arm in the fall. Which party will be held responsible?

The injury occurred leaving a limited common element and moving into unit property. Based on statute, the associations bylaws, and policy wording, who knows? Some situations may require court involvement.

As stated previously, most situations involving limited common elements will follow the rules for common elements. But some may end up in a court of competent jurisdiction to decide if one or both parties will be held responsible for the injury or damage.

Injury or Damage on or Caused by Unit Property

Like assigning responsibility for injuries that occur on or caused by common elements, it is pretty simple to assign financial responsibility for injury occurring within a unit or caused by unit property. The unit owner will be held responsible and his HO-6 will be called upon to pay for any injury or damage within the unit or caused by defined unit property.

Concluding Points

When working with a residential condominium association or the unit owner, each party’s potential legal liability must be considered, not just the property exposure. As detailed in this article, the agent must review certain key points when considering liability protection, such as:

  • Where did the injury or damage occur?

Coverage limits:

  • Does the association require unit owners to carry relatively high limits of liability coverage?
  • How great is the difference between the association’s and unit owner’s liability limits?
  • Does the unit owner carry additional loss assessment coverage? What version of the endorsement is being used?
  • How does the state in which the association is located apply the concept of joint and several liability?

Related Products


Comments

  • August 10, 2011 at 3:00 pm
    Dave Koegel says:

    Interesting article. Does anyone know which 9 states apply pure joint-and-several laws, which 27 states utilize modified joint-and-several laws and which 14 states employ pure several laws?

  • August 26, 2011 at 12:15 pm
    Patricia says:

    Chicago Condo. Flooding of drains from torrential rainstorm. Water came under basement door and flooded the basement and two duplex units. We are not in a flood zone so neither duplex has flood insurance. They do have homeowners insurance. One unit had all carpeting removed and replaced and other work was done throughout his unit. The other had work done as well. Who’s responsible condo assoc.or owner.

  • August 30, 2011 at 2:44 pm
    Rio says:

    If no flood Ins. on the building or unit the Assoc. D&O policy will come into play when the unit owner sues the assoc. and the agents for both will be sued under thier E&O for allegedly failing to offer or explain flood ins. but the true responsibility lies with both the assoc. and the unit owner for failing to buy flood ins. because they are both to cheap and know they can blame it on someone else or get the government to bail them out

  • May 9, 2012 at 11:52 am
    Gary Konietzko says:

    Our association recently did a repair on our sewerline. The contractor was suppose to gain access to the project through the associations common area. Instead they accessed the project through my limited common area damaging my lawn. Is the association respoisiable for fixing the repair?

  • May 26, 2012 at 12:28 pm
    Condo Bill of Rights says:

    BILL # A07716 / S 5102 – Bill of Rights for Owners of Residential Condominium Units

    Everyone should contact Assembly Woman Aileen Gunther to support this bill… you can go to http://assembly.state.ny.us/
    and find information on the Bill Sponsored by

    http://assembly.state.ny.us/mem/Vito-J-Lopez
    and co-sponsored by

    http://assembly.state.ny.us/mem/Sandy-Galef
    and also co-sponsored by

    http://assembly.state.ny.us/mem/Linda-B-Rosenthal

    Everyone should also contact Senator John J. Bonacic to voice support for the bill also.

    http://www.nysenate.gov/senator/john-j-bonacic

    New York State Assembly
    assembly.state.ny.us

  • March 9, 2013 at 6:06 pm
    danny says:

    I had no condo insurance (MD) and my negligence caused water damage to the two units below. I’m responsible to up to $5,000 for the repairs. The minor repairs have been completed. Now the two unit owners below me want money from me for their inconvenience and personal property damage. Do I have to pay them?

  • July 23, 2013 at 5:37 pm
    Carol says:

    I live in Minnesota. I live in a condiminum-3 story, upstairs, main floor, basement. I contacted the Association in March of 2011, where the gutter leaked water on the corner of the west and north walls outside. In September of 2011 I wrote to the Association of my basement flooding. I requested what the guidelines were regarding association vs foundation. Of course then we went through winter, at that time we pulled up the carpet and took all the free standing shelves down and packed all the items away. You could smell the mold when you walked in the door. They blamed it on the patio because it had settled and was slopped toward the house on the north wall. For months and months I dealt with this. Then I received a quote that they would tear up the patio including steps, hall away debris Back haul fill to place against new winder well and repaired block wall. Tamp for positive damage. Build temp step to get into house until I can build deck as wanted. $1495. We continued to argue over this until I had an actual foundation company come out and confirm what I had been telling them for months that it was the west wall leaking not the patio wall. In my basement the west wall was always wet and patio wall stayed dry. 100-150 pictures. After they signed the contract and paid for the west wall anchors to move the wall back in place, put in a sump pump and drain tile due to recommendation of foundation company, I have had no problems, the work was finally started 10/31/12. Now the Association’s attorney wrote in a letter that we would be going to litigation over this because I told them I was not paying for it. When I sent an email to the Association to find out when we were going to court they advised me that we would not be going to court, they were going to foreclose on my property. I am late on my dues but sent him several emails telling him that we would deal with the dues when we went to court. I am taking them to court, I still have about 2 1/2 stack of emails back and forth to file. What are my chances of winning this?

  • January 31, 2014 at 12:31 am
    Ali says:

    If someone working in common elements of an association get injured severly,like becomming paraplegic, and courts award him well beyond the association liability insurance coverage, who is responsible to pay.

  • July 16, 2014 at 4:14 pm
    Richard says:

    Common elements includes easements through unit walls for conduits, plumbing, etc. for the furnishing of utility services to units. At some point in time a wall adjoining two units was opened and incorrect plumbing was performed. As a result of a water leak the wall was recently reopened and plumbing was corrected. Unit owner claims that they did not have the original faulty plumbing done and that it probably was performed by a previous owner and since it occurred in a “common area” that the Association should now pay for the corrected plumbing and wall replacement. Is the present owner correct?

  • November 1, 2014 at 4:54 pm
    Lawrence Rosenberg says:

    I own a unit in the condo were I live. We have a large common yard with trees, bushes and other plantings. The board installed a short,thin wire fence (about 15″high) at the entrance to the yard. They did not post any notice that they were going to do this. They used an old fence that was oringally used to close off some short bushes in another part of the yard. The fence is rusted and blends in with the bushes and dirt. It’s hard to see even in daylight. They did not post any notice that they were going to do this. They also closed the only entrance to the yard. Everyone entering or leaving the yard has to go through it. One night I was entering the yard by this entrance. I did not see the fence that was supposed to close off the entrance,because that part had been bent so that it was laying on the flat on the ground. I tripped and ended up in the ER for a fractured nose and cuts on my forehead the required stichtes. I also broke my glasses. I called the condo mangement company the next day and I was told that they had no liability or responsebilty for my injuries and that I could not claim any damages. Is this correct. I’d like to know before I contacted a personal injury lawyer.

Add a Comment

Your email address will not be published. Required fields are marked *