An upper floor unit in a luxury condominium was purchased in 2006.  A terrace was an included and important amenity.

A unit owner alleged that in 2010, water began leaking through the ceiling above a terrace door and that the leaks emanated from the exterior common elements.

The president  of the board of managers acknowledged that, in around 2011, the owner began to complain about water infiltration in the apartment.  The board retained an architect to conduct an inspection to the building’s façade and concluded that there may have been “some water leaks…at the time of inspection…from above window heads and at each side of window jambs”; but nevertheless concluded that the building had been diligently maintained.

After further complaints, another inspection was conducted by the architect in mid-2012 which concluded that no water infiltration was observed at the apartment.

In 2014, as a result of a leak in the apartment, the terrace door and the wooden floor buckled.  And, beginning in late 2015, there was frequent leaking, coinciding with rain, from both above the terrace door and around the dining room window, causing more damage to the floor.

The condominium allegedly delayed repairing the condition affecting the apartment due to a neighbor refusing to allow the repair work; however, the neighbor allegedly informed the owner that access had not been refused; and, to the contrary, access had not even been requested.

Following further complaints, another survey was conducted in 2015, specifically addressed to the unit, after which it was concluded that the location of the water infiltration was at the apartment’s terrace door.

According to the board president, attempts were made to repair the portion of the building’s façade that had been the source of the water infiltration; however, the contractor was unable to gain access to the neighboring property in order to erect legally-mandated scaffolding to address the façade areas.

After some delay, access to undertake the repairs was obtained; no water infiltration was observed; however, the waterproofing was upgraded and the façade and windows were re-caulked.  No leaks through the façade were detected in post-remediation water testing.

After the work was done, the owner sued the board for miscellaneous expenses, not covered by insurance, such as storage, replacement of a television cabinet, repainting and repairs to baseboard and sheetrock, damage to the terrace lighting and cleaning and restoration after the leaks were fixed.  The condominium moved to dismiss the complaint; and the owner cross-moved for summary judgment.

The Court summarily disposed of the condominium’s defense that the claims were barred by the three-year statute of limitations.  The Court concluded that, since the leaks progressed through 2016 and the condominium had a continuing duty to repair, the owner’s suit was not barred by the three-year statute of limitations.

The condominium asserted that, under the governing documents, the responsibility for the terrace and/or terrace door the owner was responsible.  And, in turn, the owner referred to the offering plan provision that provided, in substance, that repairs to the terrace, including any leaks not caused by apartment owner, were to be made by the condominium.

The Court denied the owner’s cross-motion for summary judgment because triable issues of fact existed as to the source and cause of the leaks, condominium’s response to the leaks, and which party had responsibility for repairing them.

Lesson learned:  Litigation is not an efficient way to resolve disputes.  To avoid legal proceedings, be governed by the organizational documents – and keep contemporaneous records of all claims, notices, remediation and repairs.

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