From the Forum – Neighbor’s Toilet Overflowed – who’s liable for damages?

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Neighbor’s Toilet Overflowed – who’s liable for damages?:

“Upstairs neighbor’s toilet overflowed last weekend. Flushed, left and about an hour later water was dripping from our bathroom vent (ceiling) and down the wall that holds our fusebox. Neighbor turned off toilet, stopping the dripping water but about an hour later we noticed water dripping and pooling under the paint in the ceiling of our dining room (about 12 feet from our toilet which has the same layout as the condo unit upstairs). About a gallon of water in total came down from 2-3 places.

We have since had a water repair specialist come out and using a density scanner was able to determine that there’s water in at least 3 of our walls, the bathroom ceiling and the dining room ceiling.

Neighbor is claiming the building’s master insurance policy should pay though my reading of our by-laws indicates it should be the unit owner’s personal policy. Neighbor has claimed a call was put in to their insurance but that insurance company will not cover this. I’m skeptical the call has even been placed. It’s now been almost a week since the incident and we have gnats starting to appear though I can’t be certain that’s related since I can’t find the source.

My understanding is that a homeowners insurance policy has a liability clause that should cover damage to other units, but I’m by no means an expert. I don’t want to get my insurance involved as I was told I have to file a claim / pay the deductible regardless of whether or not my insurance is able to get subrogation from neighbor’s.

Help! Any advice on how to get my neighbor to cooperate, what your understanding of insurance in these situations covers, whether I should bite the bullet and pay my deductible, call a lawyer or whatever else would be very helpful!”

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27 Comment

  • I’d start by calling your insurance company and getting the correct facts on your ability to recover your deductible after subrogation.

    What I wouldn’t do it continue to wait while water causes further damages/infestations/mold.

  • The condo’s master insurance policy does not cover this. I would notify the board of this incident to let them know what happened, they will be able to let the unit owner know they are liable for damages. I serve on the board of my condo building and we had an incident a little over a year ago where a couple, renting their unit, went on vacation and their washing machine all of a sudden started raining water down on the 3 levels below it. It caused an enormous amount of damage (the three unit owners below actually could not live in their units ranging from a couple of days to a little over a week) and it was a huge struggle to get resolved with that unit owner and the board did have to get involved. There have also been instances of toilets leaking from units above into units below, and the units above were liable for damages. My own HVAC unit started leaking onto a downstairs neighbor and because of my experiences overseeing issues like this on the board, I turned around immediately (I was headed to work) and went home to 1)turn off the unit and 2) get a repairman out right away to avoid any further damage.

    You do need to be more proactive in your battle and not just sit around wondering what to do because water damage can be a pervasive and costly issue to resolve the longer you let it sit. The person above you is just trying to push you a bit to see if you’ll back off. You are going to have to push back.

    • All of this. Especially for a water source so clearly within the unit, the owner’s policy needs to cover this, and you should definitely get the board involved right away (if they’re not already).

  • The master policy would only come into play if the cause was behind the walls say a pipe burst in the wall made the toilet overflow. Yes, upstairs units policy would cover damage to your unit if they were the cause. That’s what it’s there for in condos (mostly). If upstairs won’t give you insurance info, then I’d definitely get your company involved. Ultimately you could sue them for the deductible if nothing else. If you have a property manager, they should have everyone’s insurance info.

    • Actually, in a co-op I used to work at, some pipes behind the walls that burst were still the owner’s responsibility. I can’t remember why exactly, and it might be different for condo v co-op, but the wall is sometimes not the boundary!

  • Maybe ask them for their insurance claim # and tell them your insurance needs it to verify your claim? Then call their insurance to see whether it covers your damage as well.

    It seems to me that it would, my renters insurance automatically includes coverage for damage caused to my building/other neighbors.

    • But what if they’ve been renting their unit and didn’t change their insurance policy, they still have a homeowner’s insurance policy? I can see that being a possible cause for the insurance not covering. However, just because their insurance doesn’t cover it doesn’t mean it isn’t the upstairs neighbor’s responsibility.

  • This happened to me a while ago. Get your insurance to talk to their insurance — your insurance should be able to get their insurance to pay up.

  • Had a very similar experience with my condo, and my upstairs neighbor paid for all the repairs. Might be a slightly different situation, though, because my building has in-house maintenance staff that does the repair work, and since the leak clearly came from the upstairs unit, the bill for that work was charged directly to her account. I don’t know whether her insurance reimbursed her or not, but there was never any question in my situation that she was liable.

  • Step 1: Talk to your insurance company. See if they can contact the neighbor’s company to get the ball rolling/if you can be reimbursed for the deductible if another party is at fault.
    2: Try to get the neighbor’s insurance company’s information.
    3: Start getting contractors in for quotes. With warmer weather brings more humidity, and with humidity comes the potential for mold in especially damp spots.
    4: Approach your HOA/Board for consequences regarding your neighbor if s/he won’t cooperate. I’d also contact your other neighbors (below and immediately next to you) and let them know if the issue so they can check for water damage and understand why there may be a lot of noise coming from your unit in the next few weeks. Making friends with the other neighbors can go a long way when it comes to these issues.

  • This should be the other units fault. Definitely do not submit the claim through your insurance if you can avoid it. Even one claim can cause your rates to go up both now and in the future. Any claim you submit will go into a database available to all insurers. Even if your rates don’t go up now, filing a claim may increase your rates in the future or, if you file multiple claims, make you unable to get insurance. Do some googleing on this, the database all insurers have access to is called CLUE.
    Your insurance would probably pay this out, but if you have another problem in the future which is your fault (say you accidentally flood another unit) you could be in for some trouble). Start with the board, get the damage fixed asap, and file with your own insurance only as a last result.

    • While it sucks that insurer may refuse to renew if you make too many claims, not talking to your insurer and not doing anything is going to cause you way more trouble.

      • Yes, but you can get it fixed now and submit later for reimbursement. Frankly if it’s under 5k though I wouldn’t. The consequences of not being able to get insurance are HUGE. You would not, for example, be able to close on another property.

      • Not saying I support this system by the way. It’s completely wrong and the industry really should be better regulated (after all, shouldn’t insurance be there for accidental damage?). But it’s important to be aware of how it works.

        • Sure, understood!
          My homeowners has notice requirements, so submitting for reimbursement later may or may not be an option for this person depending on the terms of his or her polict. I would agree that 5K is probably a good cut off in deciding whether to make a claim.

        • Sure, understood!
          My homeowners has notice requirements, so submitting for reimbursement later may or may not be an option for this person depending on the terms of his or her polict. I would agree that 5K is probably a good cut off in deciding whether to make a claim.

  • anonymouse_dianne

    My insurance (State Farm) covered this for me in a similar situation. I was the leaker.

    • I was also the leaker and my insurance paid (never thought it would be under the master policy). The other unit’s insurance did have to get involved, though, so you might as well go ahead and let them know about it, too.

  • this is the responsibility of your neighbor. It is highly unlikely that a master insurance policy would ever cover this. The only time the master policy will typically come into play is if the fault cannot be determined (which in this case their toilet clearly leaked), and the problem happened behind unit walls where broken pipes/leaks/damage could not be determined. You should reach out to your condo board immediately to get involved, and make sure the neighbor is up to speed with the condo docs and master building policy. good luck!

  • I had a similar problem in my old place, and it was a nightmare getting anyone to trace the problem or get the board to take a stand about who was on the hook to fix it. Your neighbor sounds like they are trying to weasel out of paying it, so I would definitely contact the condo board for help. Best of luck.

  • I have held every position on my condo board (currently treasurer) so I am experienced with problems like these. This is an owner-to-owner situation not covered by the condo association’s master policy. Owners are responsible for their appliances. That said, it’s amazing how insurers weasel out of claims. In my building, an owner’s hot water heater failed, sending 40 gallons of water into the kitchen of the unit below. The owner who caused the damage replaced his HWH and cleaned up the damage in his unit immediately. No pictures were taken. So, no proof when the owners of the flooded unit filed a claim. The only money they got was from their insurer and it was not enough to make them whole.

    Ironically, my upstairs neighbor’s HWH had flooded my unit a few months earlier but he paid for everything. Then he filed a claim against the building’s master policy, The adjuster and I had a good laugh when she came to see the damage. I took a hint and replaced my HWH because I knew it was past its natural life.Then I told my downstairs neighbor what happened and suggested he replace his HWH which was as old as mine. He didn’t. He’s the bad guy in the first paragraph.

    I did hear of a case where a condo assn tried to hold a unit owner responsible for water damage from pipes in walls. The owner did a DIY kitchen reno and drove screws into the water pipes. Took a while, but eventually there was a flood that damaged his unit and the unit below. Alas, Mr. DIY had already sold the unit and moved on so the new owner was on the hook.

  • The key is in the by-laws. Have a couple of people re-read any language that applies to owner responsibility, use of unit, etc. (not everything is in a logical place). Definition of unit (what part you actually own) is very important, as well. Once found, take your case before the Board and the building’s management company; the building manager will run things past a lawyer and will know how best to approach the insurance companies. If you feel the Board is unresponsive call the management company, yourself.

  • Years ago this happened to me but my unit was the cause of the leak. I moved in and 9 days later I got dressed for work, left around 9:00a …. at 6:30p I got a call at work from the front desk saying there was a leak and they had to go into my unit to stop the water. My unit was on the 9th floor; the leak affected units on the 2nd floor — 16 apartments in all. It was terrible.

    In this instance, everyone’s insurance was triggered – mine, the other condo owners and the general insurance. I can’t tell you the legal justification for why, but I know that’s what happened.

    Good luck!

  • theoutregirl

    Regardless of who is at fault this is not handled like an auto insurance issue. You call *your* insurance company and if there is liability involved they take care of it (sub-rogation). Master insurance covers issues within common areas but your insurance company will need to review your bylaws. Call your insurance company ASAP and they will work out the rest.

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