It’s Spring, Time to Ward Against Water Issues

April 1, 2013

By Curtis G. Kimble.

It may be April Fools Day, but it’s no joke that every year around this time insurance companies see many flood issues and claims from homeowner associations.  What’s worse, flood insurance is expensive and the typical HOA insurance policy does not provide coverage for flood and surface water claims.  So, how do you protect yourself and your community?  An HOA insurance specialist Béat Koszinowski of the Buckner Company shared some loss prevention tips with us that I’m passing along:

1.   Problem:  Irrigation system floods.

  • Broken pipes, leaks and breaks that occur during the first few weeks of operation
  • Malfunctioning or incorrect setting of the system causing overwatering
  • General overwatering of certain areas or watering while the ground is still frozen (this can also cause slip and fall liability claims)
  • Runoff due to changes in landscaping, etc.

Solution:  Check the entire irrigation system thoroughly and inspect all areas where the sprinkler system operates at the start of the season and on a regular basis.  Do not activate the system without checking it and making sure it operates properly. The average amount of this type of claim is between $15,000 and $25,000 and preventing this type of issue is a good investment in your property.

2.   Problem:  Landscaping, gutter and roof water runoff.

  • Settling, sinking, expanding or shifting of the ground or landscaping features
  • Ground cover or other landscaping features that are causing water to accumulate near the home and or penetrate the building envelope via the surface or below the ground.
  • Water runoff near buildings that is not properly channeled away

Solution: Check the entire HOA grounds for problem areas and or hire a skilled contractor to check your landscaping, building envelope and other important areas.  This helps to ensure your property and investment is protected.

Tip:  Board members or homeowners should notify the manager or maintenance crew if they notice areas of concern. Don’t assume they know. It is important to understand that most insurance companies will not pay for damages that cause a claim due to wear and tear, rot, mold, latent defect, rust and corrosion, faulty workmanship, faulty design and inherent vice. Inherent vice means losses caused by a quality in a property that causes it to damage itself or destroy itself.

Hopefully, these tips will help keep this important issue in everyone’s mind at this time of year and will help avoid problems that are worse than any April Fools joke.


Let it Snow? Who Should Remove Snow and Ice?

December 11, 2012

By:  John Richards

Most Property Managers dread the “snow days.”  It takes a lot of effort to coordinate your snow removal vendors, especially if there is a continual downpour of the white stuff and it keeps accumulating.  Questions arise such as “how often during a storm should the snow plow go out?”  If a lot of snow is expected, is it reasonable to wait between “pushes” before they are sent back out, and what liability is there is someone slips on snow or ice that was the Association’s obligation to remove?  What about Associations that provide ice melt to their members and asks them to put it on the common area walkways that lead to their door?  Does this create any legal concerns? 

These exact same questions apply to self-managed Associations with the additional circumstance that many smaller, self-managed Associations use “volunteer” homeowners to remove the snow.  The article will address these questions.

When considering the HOA’s obligation to remove snow, first and foremost make sure that you are absolutely certain which portions of the property are either:  (1) general common area; (2) limited common area; and/or (3) part of the owner’s lot.

Next, be clear as to whether the owner or the Association is assigned to remove snow from each of these three (3) different types of areas (Note:  not all Associations will have all three (3) types of property).  Remember, this “assignment” will be set forth in your CC&Rs.  If there is any uncertainty whatsoever in your governing documents, have your attorney draft a snow removal obligation chart that shows clearly “who clears which areas” based upon the CC&Rs.  This chart is then distributed to the owners.

If an Association member (or their guests) slips and falls and is injured due to snow or ice on the common areas, the Association may be liable, but not in all cases.  An Association’s liability is governed by the following concepts:  (1) If the owner had the obligation to remove the snow or ice under the CC&Rs, then the Association will not be liable for an injury that occurred in such an area; (2) If an injury occurs in an area over which the Association has maintenance obligations (i.e., snow and ice removal) then the injured owner/guest may have a good case if (a) the Association had actual or constructive notice of the snowy/icy condition (that is, they should have known); and (b) the Association failed within a reasonable time to reasonably remove the ice or snow. 

Of course, the term “reasonable” is subject to a lot of interpretations and varies with each situation.  However, at a minimum, it is likely to be deemed “reasonable” by a court that an Association has a legal obligation to inspect and remove snow and ice (whether from a single snow fall event or during a continuous snow fall during a storm) on a regular basis for so long as the threat of dangerous snow and/or ice is present.  This could create an extreme burden on those Associations that remove snow “up to the door” of a member but this obligation simply cannot be ignored.  I believe the legal standard in Utah for an Association to remove snow and ice will be the same as found in the Restatement of Torts which implies that the Association will be liable for an injury if it “fails to exercise reasonable care to protect the members or guests against danger….”

As for giving your members ‘ice melt’ and a shovel to take care of the common area in front of their own doors, I do not believe that this a bad idea at all, however, be cautious of the unintended consequence of the Board believing that members are taking care of potentially slippery and hazardous areas when, in fact, this will remain an Association obligation.  One tip, besides those mentioned above, is to hire a reputable and insured snow removal company who will take care of the snow and ice in the parking lot and walkways in a timely manner.  As I typed this entry, snow is lightly falling which is something that I presonally thoroughly enjoy. Consequently, let’s not diminish the beauty of the winter season by unnecessarily exposing our Associations to legal liability for failing to keep the common areas reasonably safe and clear from snow and ice.

 


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