Imagine that a downpipe in the apartment building where you live breaks and causes water damage to your apartment and other units. The walls of your home become damp, your appliances are damaged, and you will have to replace the entire floor. What happens in these cases?, who carries out the repair and what is the time limit to claim damages from the homeowners’ association? In this article, we answer all these questions.
The obligation to maintain common elements
The first thing to keep in mind is that in a homeowners’ association there are private elements, which are the apartments or commercial units, and common elements, which include community downpipes, the elevator, the facade, and the entrance, among others.
In this regard, it is important to know the regulation of Article 10 of the Horizontal Property Law, which establishes the obligation of the association:
- · To carry out all the work and tasks necessary for the maintenance and preservation of the property, its services, and common installations, including those required to meet basic safety, habitability, and accessibility standards, as well as aesthetic conditions.
- · To take the necessary measures to guarantee universal accessibility for people with disabilities or those over 70 years old.
Therefore, if the association does not properly maintain the common elements or fails to carry out the necessary accessibility works and damage or loss occurs, it will breach its obligation and liability will arise.
What liability does the homeowners’ association have?
The homeowners’ association may have civil liability in case of damage to a neighbor’s home or to a third party. This liability can be:
- · Contractual. When there is a contract between the parties that regulates the obligations assumed by each.
- · Non-contractual. In the case where no contract exists.
According to the Horizontal Property Law, the association must meet debts to third parties with all funds and credits available, and under Article 1911 of the Civil Code, the association is liable with all its present and future assets. In case of non-payment, the owners may be subsidiarily liable in proportion to their share of participation in common elements.
What requirements must be met to hold the association liable?
If a neighbor wants to claim damages from the association, three essential requirements must be met:
- · There must be concrete damage. That is, the type of damage can be identified and specified.
- · There must have been an action or omission. That is, the damage derives from a conduct carried out by the association or from something it failed to do (for example, maintenance of a common element).
- · There must be a causal link between the damage and the conduct. That is, the damage must be a direct result of the association’s conduct.
Furthermore, in the case we are discussing, the injured party must be an owner of an apartment or commercial unit in the association who claims against the association; therefore, the owner has active standing (the one entitled to file a lawsuit in these cases) and the association has passive standing (the one being sued).
What is the time limit to claim damages from the homeowners’ association?
The Horizontal Property Law does not set any time limit, and most authors consider that the five-year statute of limitations regulated by Article 1964 of the Civil Code applies. Provincial Courts and the Supreme Court have studied this issue on several occasions. The latter determined that the period an owner has to request compensation from the association for damages due to lack of maintenance or upkeep of a common element is five years.
And if the damages are claimed by a tenant: what time limit applies?
In this case, it would be a different situation because it is not an owner, so they can exercise the action for damages against the association within one year.
From which moment does the claim period start?
The five-year claim period for the owner we detailed above is counted considering whether the damages are permanent or continuous:
- · If the damage is permanent, the period is counted from when the owner becomes aware of the damage, even if the damage continues afterward.
- · If it is continuous damage, the date when the damage ends is considered because that is when the full extent of the damage can be known.
To clearly understand the difference between permanent and continuous damage, permanent damage remains over time, while continuous damage not only persists over time but also worsens because its cause does not disappear.
What can be claimed by someone who has suffered damage in their apartment?
Depending on the specific case, several claims can be made. They are as follows:
- · Payment for work done in the apartment or unit. As a consequence of the damage, the owner may need to carry out work in their apartment or unit and may claim reimbursement from the association for these costs.
- · Loss of income. Imagine a commercial unit that must close for some time due to the repairs, resulting in lost revenue. This amount can also be claimed.
- · Payment for repairs in common areas. It may also happen that the owner has had to make repairs in common areas. In this case, a prior claim must be made to the administrator and the president of the association requesting the repair and indicating that it is urgent. If this request is not made, the association is not obligated to cover the cost of the work.
- · Payment for moral damages. In addition to material damage, moral damages may also occur. Compensation for such damages is recognized by case law in certain circumstances, depending on each case. For example, it has been recognized in cases where the damage is persistent over time and places the person in a state of uncertainty.
If I claim damages from the association: do I have to pay the legal costs?
The judicial procedure against the association incurs costs for the owner filing the claim and for the association (lawyers’ fees, court representatives, etc.). These costs of the association should not be paid by the owner who suffered the damage.
Is it important to have an expert report?
An expert report in these cases is essential and it is quite common for it to be prepared by the insurance company of each party (owner and association).
The expert report should establish:
- · The specific damage that has occurred.
- · The cause of the damage.
- · The cost of repairing the damage.
We have seen that these are complex cases in which the involvement of expert appraisers to determine the damage is essential and in which it is also important to file claims within the deadline to be compensated for the harm caused.
If you need legal advice on how to claim damages from the homeowners’ association, calculate deadlines, or prepare the necessary documentation, the team at Proddigia can help you. Contact us and we will guide you step by step so that your claim is made correctly and without surprises.
