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Incidental Damage Clauses

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There are times when an association must damage a unit or units in order to maintain or repair the common elements.  For example, if repairs must be made to a common element water trunk pipe, an association may have to access the pipe by tearing though some portion of a unit wall.  This type of damage is generally referred to as “incidental damage.”

In order for an owner to bring a claim for incidental damages against their association, the following elements should exist:

  1. There must be an “incidental damages” clause within the governing documents;
  2. The unit is damaged while the association is conducting its maintenance work; and
  3. The damage to the unit is the result of or related to the association’s maintenance work.

If there is no “incidental damage” clause in the condominium documents, the association should not be liable, except in the case of negligence on the part of the association or the association’s contractor.  However, if an owner were to file a complaint against the association, a judge may be inclined to rule in favor of the owner on equitable basis (i.e., that because the association was the party that caused the damage, the association must fix the damage).

If there is an “incidental damage” clause in the condominium documents (typically within the declaration of condominium), that clause will control.

There are many different ways to draft an “incidental damage” clause and the association board should review and understand the incidental damage clause in the condominium documents, if one exists.  If the clause is poorly drafted, the board should consider proposing an amendment.

In some cases, the condominium documents will require an association to repair the incidental damage, but the association’s liability is “capped” up to a certain amount per occurrence.  Another approach (instead of a “cap”) is to require the association to be responsible for replacement of components in “like kind and quality” or with components in “like kind and quality” to the components originally installed by the developer, with the owner being responsible for the difference.

Your association attorney will be able to review your condominium documents to determine the extent of your association’s incidental damage clause, if it exists, and can advise as to whether any amendments would be beneficial.

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