By Marc Markel and Clint Brown

Apparently, the old adage is true “There’s nothing between [Texas] and the North Pole but a barbed wire fence.” Over the past week, Texas has seen unprecedented wintery precipitation and temperature drops crippling the independent Texas power grid causing homes and condominium units across the State to lose power. The loss of power and low temperatures has also caused pipes to freeze and burst.

As Texas temperatures rise back to our normal winter daytime averages in the 50’s and 60’s, many homes and condominium units will start seeing burst pipes and resulting water damage. Owners and management companies should be ready to shut off water valves as soon as possible at the first signs of a burst pipe and/or water leak.

For condominiums, unless the Declaration provides otherwise, Section 82.102(a)(16) of the Texas Property Code (TPC) allows the association to enter a unit without notice “…for bona vide emergency purposes when conditions present an imminent risk of harm or damage to the common elements, another unit or the occupants.” While associations 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 its governing documents control. Section 82.052 provides much more clarity as to what constitutes a unit and 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 property code sections the association’s declaration could provide otherwise for responsibility of pipes. Accordingly, it is imperative the association work with its management team 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 association responsible and owner responsible items and provide clarity to the board of directors 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.  The association should have taken action to formulate a resolution as to responsibility for the payment of deductibles. If the association has not adopted a deductible resolution, you should add that to the list of to do’s.

We sincerely hope everyone is staying safe and warm. Please know the RMWBH team is here to assist in whatever challenges and hurdles Texas associations are facing.