“Winter is coming” is not just a slogan from a popular tv show, but something all Texans will remember for years to come. The great freeze of 2021 opened our eyes to the delicateness of our public and private infrastructure. After days of temperatures in the teens with no power or water due to the failure of the electrical grid, homes and buildings across the state began seeing pipes burst resulting in major damage to many properties. High-rise condominiums were hit particularly hard. As we reach the peak of another winter and many experts saying the power grid remains vulnerable, what can high-rise condominiums do to prepare in case another winter storm affects Texas?
To start with, if the association has not already done so, management should work with the board, maintenance staff and vendors to ensure all association owned resources, such as the pool and HVAC, are properly winterized. Management and the board will also need to work with the association’s insurance agent to ensure they have the proper coverage in the event association owned resources and common elements are damaged in the event of burst pipes. Management and boards should also inform the owners of the procedures that will take place should a pipe burst including the ways to immediately shut off water.
For condominiums, unless the Declaration provides otherwise, Section 82.102(a)(16) of the Texas Property Code (the “TPC”) allows the association to enter a unit without notice “…for bona fide emergency purposes when conditions present an imminent risk of harm or damage to the common elements, another unit or the occupants.” While an association should make its best effort to notify a unit owner or tenant of its intent to enter the unit, it can enter the unit to shut off any water valve to reduce water damage to the units and common elements.
Once the water has been shut off and any broken pipe capped and repaired, the next question to ask is who pays to fix the pipe and any resulting water damage?
For those condominiums whose declaration was recorded prior to January 1, 1994 and have not otherwise adopted Chapter 82 of the TPC, Section 81.105 of the TPC and its governing documents control. Section 81.105 defines the unit to include the interior surfaces of the perimeter walls, floors and ceilings. Unfortunately, this definition does not specifically address pipes which means the association must rely on its governing documents to determine pipe responsibility.
For those condominiums whose declaration was recorded on or after January 1, 1994 or have adopted Chapter 82 of the TPC, Section 82.052 of the TPC and the association’s governing documents control. Section 82.052 provides much more clarity as to what constitutes a unit and a limited common element and indicates that pipes serving a unit exclusively are considered limited common elements. Section 82.107(b) further provides that the unit owner is responsible for the “…cost of maintenance, repair, and replacement of any utility installation or equipment serving only the owner’s unit…”
Please note; however, for both of the aforementioned TPC sections, the association’s declaration could provide responsibility of pipes. Accordingly, it is imperative the association work with its management and legal counsel to determine responsibility and consider adopting a responsibility matrix. This matrix should be prepared by legal counsel. The matrix will help to categorize whether the association or the owners are responsible for repairs/maintenance and provide clarity to the board and owners.
Finally, it is important to keep in mind that insurance may provide coverage for the burst pipe and damages stemming therefrom. Depending on whether the condominium has stacked units, either the association’s or owner’s insurance may be primary coverage. However, deductibles for insurance have been consistently going up over the last few years and it is likely that a condominium has a deductible of at least $10,000 per incident but may be considerably higher. It is recommended that an association take action to adopt an insurance deductible resolution relating to the responsibility for the payment of an insurance deductible. If an association has not already adopted an insurance deductible resolution, it is recommended to add it to the association’s to-do list.
We sincerely hope everyone stays safe and warm this winter. Please know the RMWBH team is here to assist in whatever challenges and hurdles Texas community associations face this coming year.
