Leak damage from upstair neighbor due to toilet wax ring malfunction

[jackgui]

What is the name of your state? CA

My upstairs neighbor s toilet was leaking around wax ring area. The leak caused my bathroom ceiling to ‘sink’. There was no sign of water damage. We called emergency hotline to get HOA plumber to check. It turns out the accumulated water put weight on the ceiling and almost collapsed eventually.

Facing a hefty bill from HOA( more than $10,000), my neighbor is pleading our negligence. Saying we didn’t report the issue in time. The unit is mainly occupied by my parents under my name (I pay visit a couple of time each month_. My parent called me for help as soon as they noticed the ceiling issue. Somehow my neighbor consider it is my parents fault and threatening to sue them or me in small claim court.

HOA gives me the choices to either go with HOAs master insurance policy and let them to subrogate (I would be forced to accept whatever comes out of it) or file the claim with my insurance company, in which case I will be $1000 less for sure ( from the deductible). How would I be able to seek the compensation for whole damage, deductible and inconvenience caused by the whole incident.

 

[Zigner]

If you file through your insurance, then your insurance will subrogate.

 

[justalayman]

Depending on what the upstairs neighbor knew, they may have no liability. It usually requires negligence for the neighbor to be liable. The neighbor may have been totally unuaware of any issues with the toilet. If true, they aren’t going to b liable for your damages.

If they were aware of an issue with the toilet and ignored it, then you could argue the were negligent and as such, are liable for your damages.

 

[jackgui]

@justalayman Thanks for you explanation.
We ever complained to HOA about loud water noise last year. Neighbor refused the plumber appointment. Could it be seen as negligence?
The problem is that neighbor is trying to pin the "negligence" argument to me and my family, hence arguing the full bill (far more than the $1000 deductible). Use the argument that me (the owner) doesn't constantly live there (in the second home) but my family does. I don't want my insurance to blindly pay any of the bill hence impacts my future insurance rate. The only worst case I can possibly accept is the out of pocket deductible. but not to impact future insurance renewal.

 

[justalayman]

@justalayman Thanks for you explanation.
We ever complained to HOA about loud water noise last year. Neighbor refused the plumber appointment. Could it be seen as negligence?
The problem is that neighbor is trying to pin the "negligence" argument to me and my family, hence arguing the full bill (far more than the $1000 deductible). Use the argument that me (the owner) doesn't constantly live there (in the second home) but my family does. I don't want my insurance to blindly pay any of the bill hence impacts my future insurance rate. The only worst case I can possibly accept is the out of pocket deductible. but not to impact future insurance renewal.

If the reports you made were based upon what caused your damages, then yes, willfully ignoring or failing to investigate an issue would be considered negligence.

Whether you (or your parents) were negligent doesn’t change much. It may be used to argue you failed to mitigate your damages but there would still be some level of damages to you if you had seen it sooner.

Your report of the noises, if it ended up being the cause of your damages, was your attempt to mitigate any damages to you. After thst point, it’s on the upstairs neighbor.

 

[xylene]

When did awareness become a requirement for negligence?

When did negligence become required for a property damage claim?

 

[justalayman]

When did awareness become a requirement for negligence?

Um, a long time ago. Negligence is failing to act when you know or should have known there was an issue needing to be address.



The simplest example is:

Grocery store

Customer spilled some liquid on the floor

Until the merchant became aware of the situation, negligence doesn’t attach. Once the merchant became aware or reasonably should have become aware of the conditon, negligence attached if the merchant fails to act to remedy the defect.

 

[Taxing Matters]

When did awareness become a requirement for negligence?

When did negligence become required for a property damage claim?

The common law rule followed by at least most states is that to be liable for the damage done to the property of others one must have either done the damage intentionally or by negligence. One of the elements of negligence is that the the person either knew of the danger or should have known of it through the exercise of due diligence and failed to take reasonable steps to prevent that danger. If the damage occurred because of some sudden event that could not have been reasonably foreseen by periodic inspection then the person is not liable for that. Simply because something breaks on your property and that causes damage to someone else's property does not make you liable for the damage to that other person's property. There has to be negligence.

Now, it may be that your insurer would pay for the damage even if you weren't negligent, but that is based on the terms of the policy. A court would not find you liable without negligence.

 

[jackgui]

The neighbor's insurance refuses to pay for the damage. and HOA has put on the repair bill to my account.
My insurance agent is not trying to subrogate. She is saying only a small portion -- drywall and paint may be covered (less deduction).
But just the bill for the mold control alone is $6000. The negligence argument from neighbor's insurance means I have to eat the whole can of worms though nothing caused by me?

 

[PayrollHRGuy]

You have the option to sue the neighbor. Their insurance company isn't the final decider. Your insurance company has two possible reasons not to attempt to subrogate. 1. The litigation cost is more than what THEY will have to pay. 2. They don't think it would be a successful case.

Figure out what you total after insurance cost would be and talk to a lawyer. Initial consultations are usually free.

 

[jackgui]

what are the HOA's liability here? The CCR defines perimeter walls are part of condo unit. but the structure/ insulation between the ceiling and my ceiling shall be common area.
Thanks.

 

[PayrollHRGuy]

Sounds as if the HOA could sue your neighbor as well or you could pay the bill they have presented you with and add that to the suit against the neighbor.

You could also let them sue you for the cost and if you win they will likely go looking to the neighbor.

 

[jackgui]

According to the HOA rule book, my insurance company has been successful in pursuing the recovery of the damage based on their estimate. However it is only a small portion of the total bill. They won't represent me to pursue further as the rest of bill is not in my insurance coverage (mold and additional dry wall removed for mold treatment). I was directed to contact neighbor's insurance adjuster directly.

Is this the right process? Shall I file small claim suit against neighbor's insurance or my neighbor? It has been dragging for 4 months and I don't see the end of tunnel. The HOA has been arguing that I agreed with them moving on with repair so I should pay them back first. They don't recognize the damage was also in the common space (the structural component between floor and my ceiling) . They even said the water intrusion policy in the rule book is not a legal document and mentioned my family's possible negligence on the issue.

I am quoting the rule book below

"
Per the CC&R’s, you are responsible to pay for repairs and damages resulting
from leaks from plumbing inside your unit. This includes damages to
neighboring units – which is why it is important to carry Homeowner’s
Insurance, and why it is important to correct the problem quickly
"

 

[Zigner]

According to the HOA rule book, my insurance company has been successful in pursuing the recovery of the damage based on their estimate. However it is only a small portion of the total bill. They won't represent me to pursue further as the rest of bill is not in my insurance coverage (mold and additional dry wall removed for mold treatment). I was directed to contact neighbor's insurance adjuster directly.

Is this the right process? Shall I file small claim suit against neighbor's insurance or my neighbor? It has been dragging for 4 months and I don't see the end of tunnel. The HOA has been arguing that I agreed with them moving on with repair so I should pay them back first. They don't recognize the damage was also in the common space (the structural component between floor and my ceiling) . They even said the water intrusion policy in the rule book is not a legal document and mentioned my family's possible negligence on the issue.

I am quoting the rule book below

"
Per the CC&R’s, you are responsible to pay for repairs and damages resulting
from leaks from plumbing inside your unit. This includes damages to
neighboring units – which is why it is important to carry Homeowner’s
Insurance, and why it is important to correct the problem quickly
"

If you decide to sue (and I'm not commenting on the appropriateness of such a lawsuit), then you would sue your neighbor, not their insurance company.