By: Kristie Leff
With the cold temperatures now upon us, it is important that associations make sure that non-occupied units are property winterized so that water pipes do not freeze. The reason this is important is because a pipe freeze can cause water damage to not just the non-occupied unit, but to adjacent units and the common elements as well. The association’s insurance policy provides primary coverage, but many insurers will not cover damage claims due to frozen pipes if the unit was not properly winterized. This means the costs to repair the damage will be borne by the association. Sometimes these costs can be assessed to the non-winterized unit, but it is best to be proactive to try to avoid the situation altogether.
First, the association must get access to the unit. The authority for getting access to units is usually found in the declaration. Most access provisions allow the association access to all portions of the property, including units, in cases of emergency or upon giving reasonable notice to the unit owner for a mutually agreeable time. It is always best to try get unit owner permission to enter. This will prevent accusations of trespassing or theft of contents. However, if the unit is not occupied, or is abandoned due to an impending foreclosure, there may not be a unit owner around to notify or from whom to get permission to enter. In these situations, the only way to gain access would be if the situation is deemed and “emergency.” In certain situations where attempts to contact the unit owner are or will be fruitless, given the potential exposure on the part of the association, the threat of freezing pipes during the winter qualifies as an emergency, thereby allowing the association to gain immediate access to the unit for the purpose of winterizing it.
Once access is allowed or the emergency provisions are triggered, the association should hire a locksmith to access the unit, and a plumber to winterize the unit, either by draining the pipes and turning off the water, or by setting the temperature such that freezing does not occur. This may mean having to get utilities turned on. The expenses incurred by the association can generally be assessed to the unit after notice and hearing to the unit owner. However, in cases where the unit owner has gone to parts unknown or has abandoned the unit due to an impending foreclosure, there may be no one to whom to send notice. In that case, depending on the circumstances, we recommend that the hearing notice be sent to the last known address, or that the expenses nonetheless be assessed to the unit. If anyone later contests the charges, a hearing can always be held at that time to address the challenge.
Please contact our office should you have any questions about whether access to the unit is warranted as an emergency, and how the expenses associated with damage from frozen pipes and/or winterizing the unit can be assessed back to the unit.