QUESTION: A leak in the roof caused rain water to drain into a lower unit causing mold to grow on drywall. Who is responsible for removal of the mold and repairs?
ANSWER: The first place to look is in your CC&Rs to see if they address the issue. Assuming it is a common area roof the association is obligated to maintain, the association is not automatically liable just because the roof leaked. Only if the association were negligent (or intentionally caused the leak) would it be liable for the damage.
No Negligence. If the association is not negligent, each side pays for its own damage--the association repairs the common areas and the owner his unit. If the association's negligence caused the leak, then the association is responsible for repairing all damage and removing the mold.
No Presumption. Because there is no presumption of negligence whenever a homeowner suffers damage, the onus is on the damaged party to prove the association breached its duty of care. The owner must point to some act (or failure to act) by the association that resulted in foreseeable harm to the owner.
Burden of Proof. For example, the owner must show the association knew or should have known of the potential roof leak. Were there reports of other leaks, thereby putting the association on notice? Were the roofs past their useful life as noted in the association's reserve study? If the roofs were well-maintained with no reports of leaks, it's unlikely the damaged owner could prevail in an action against the association.
Mold. Mold is always a consideration whenever there are water leaks. Mold is natural to the environment and already exists in the air everyone breathes, both indoors and outdoors. (See Chart of Indoor Molds.) If the number of mold spores inside a unit are similar to outdoor levels, then everything is fine. If the count inside a unit is significantly elevated, it means there is active mold in the unit that needs to be removed. If, as you noted, mold is visible on the drywall, it must be removed. If it's a small amount of surface mold, it can be removed with bleach and water. If it's more extensive, it will require removal of the drywall.
Responsibility. If the mold is on a common area wall for which the association is responsible, the association is obligated to remove it regardless of who was at fault. If another party caused the water damage and mold, the association can then bill that party for reimbursement (following a properly noticed hearing). If the mold is on a wall the owner is obligated to maintain, then the owner makes appropriate repairs and goes after the party that caused the damage. Normally, everyone turns it over to their insurance.
Insurance. Insurance will cover water damage from a sudden leak but it might not pay for mold removal or personal injuries associated with mold. That is why it is important to thoroughly dry everything immediately following a water leak. Promptly removing all moisture avoids mold growth.
Recommendation: Associations should have restoration companies on speed dial. If there is a large water leak, they should immediately bring in fans, water vacs, and dehumidifiers to remove all moisture. In addition, the source of the water leak should promptly be repaired. The damage and subsequent repairs should be documented. See Water Damage Checklist.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.