Condo Media - April 2023 - 33

TUESDAY, APRIL 18
Where do the association's responsibilities
end? Where backups and clogs
are caused by the malfunction or misuse
of toilets, drains, or other elements that
are part of a unit, the association should
not be held responsible. In such cases,
any resulting overflow causing damage
to units directly underneath is not the
fault of the association, even though the
sewage water travels through common
area subflooring to get from the offending
unit to the unit below. That is not
to say that associations and property
managers should avoid taking action
when the cause of a backup appears to
originate in the unit, because steps must
be taken to protect common areas and
to diagnose the actual cause.
Nonetheless, sewage backups in
units caused by common area system
failures are not always the association's
responsibility. The case of Samprakos v.
Island View Condominium, Inc. is a good
example. The plaintiff, a unit owner,
sued his condominium association in
small claims court after, on two separate
occasions, a large volume of effluent
(sewage water) backed up through two
toilets in his unit, causing damage to rugs
and baseboard moldings. The plaintiff
argued that the association was liable
for his damages because the blockage
occurred in common area sewer pipes
connected to the town sewer. He also
argued that the association was responsible
because it undertook to make some
limited repairs and removed the soiled
rugs from his unit. The judge disagreed.
In the decision, the judge noted that
generally speaking, the association has
a duty to maintain and repair the common
area septic pipes and may be liable
for " what they do or fail to do " that is
inconsistent with such duties. The judge
found, however, that the association had
no notice that there was a need to clear
the clog in the common area pipes until
the second backup incident, and therefore
the association was not responsible
for the resulting damage in the plaintiff's
unit. The judge concluded that " [t]o
suggest otherwise is to make the [association's
board of trustees] the insurers
of the common areas of a condominium,
which is contrary to the obligations they
assume by statute and by contract. " Furthermore,
the judge ruled that the mere
12:00 P.M. TO 1:00 P.M.
fact the association took action to make
some repairs to the plaintiff's unit and
removed damaged rugs did not mean
the association accepted responsibility.
Instead, the judge determined that the
association's actions were appropriate to
protect common areas - presumably the
subfloor area beneath the plaintiff's unit
- from damage during an emergency.
developer refused to take responsibility,
arguing that the separate septic fields
were clogged by unit owner misuse, such
as pouring grease down kitchen drains
and flushing items down toilets. The
owners hired an engineer who, upon
investigation, determined the septic
fields were substantially undersized and
improperly installed, resulting in severe
Where backups and clogs are caused by the
malfunction or misuse of toilets, drains, or other
elements that are part of a unit, the association
should not be held responsible.
DEVELOPER AND
ASSOCIATION RESPONSIBILITY
Although less common, a full septic system
breakdown can occur even in newly
constructed condominiums where
private septic systems are installed
improperly or are otherwise defective.
If widespread problems are observed,
the association should hire a professional
engineer to conduct a full
investigation, determine the cause,
and provide a solution. The association
should also consult with an attorney
to determine if a claim may be made
against the condominium's developer
and, if necessary, to file a lawsuit seeking
damages. Contacting an attorney
immediately after septic system
problems arise is important to avoid
possibly running into the back end of a
statute of limitations or statute of repose
period for filing a lawsuit, if in fact
those periods have not already expired.
A good example is the Massachusetts
case of Wynnfields v. Classic Builders,
LLC. In that case, an association sued
the condominium developer when, just
several years after the condominium
was completed, the six separate private
septic systems servicing the condominium's
townhouse units failed. Unit
owners reported numerous backups
of raw sewage into their units, and effluent
was released on lawn areas. The
overloading and clogging. To make
matters worse for the developer, the engineer
concluded that the condominium
was too large for separate septic fields
and instead, by regulation, a wastewater
treatment facility that served all the
units was required.
The judge ruled in the association's
favor and awarded substantial damages.
In addition, the judge found that the
developer knew or should have known
it hired a septic engineer who was unqualified
and not licensed to design the
required wastewater treatment facility,
and the judge awarded the association
double damages, attorney's fees,
and costs under the Massachusetts
Consumer Protection Act, General
Laws Chapter 93A.
Whether things just happen or hit
the fan, one thing is certain, and that
is that fast action is needed when a
septic backup occurs. Associations are
advised to consult with their professional
team and act immediately, assess
the facts, determine who is responsible,
and take appropriate steps as needed
under the circumstances.
n THOMAS AYLESWORTH, ESQ.
IS A PARTNER AND SENIOR LITIGATOR IN
THE FIRM MARCUS, ERRICO,
EMMER & BROOKS, P.C.
April 2023 CONDOMEDIA 33
https://www.caine.org/2023-lunch-learn-registration-page-apr/
Condo Media - April 2023

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