Who is responsible for Frozen Pipes?

 

A condo with a vacationing tenant. A frozen pipe in a shared wall. Who is responsible for the repairs? With record breaking low temperatures, this is a very important question for landlords, tenants, and home owners associations. As with almost any legal question, the answer is, “it depends”. There are several important factors in answering this question, and the bottom line is that it will depend on provisions of, the lease, the bylaws of association, and the affected insurance policies. In a perfect world, where everyone does what they are supposed to, pipes wouldn’t freeze. But, when they do freeze, it is likely because someone was negligent. Who is responsible for keeping the pipes from freezing, and therefore who is responsible for paying for repairs is determined by the provisions, or absence of provisions, in the lease, and the bylaws?  Because there are so many different ways to write a contract, there is no easy, one size fits all, kind of an answer. Generally speaking, because the Landlord is responsible for keeping the home in a habitable condition, maintaining the pipes inside the condo usually falls on the landlord. However, pipes in shared walls are considered part of the “common elements” and usually maintained by the condo association. A tenant might be responsible for the cost of repairs if it can be shown that the tenant was negligent and failed to act in a way that would have prevented the freezing of the pipes.

 

Negligence

What does it mean to be negligent? Black’s law dictionary defines negligence as

 

“The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances.”

 

In a nutshell you could negligent if you are not doing what a reasonable person in your situation and with your level of knowledge, would do. So if a tenants has lived in a cold climate a long time, it would be reasonable to expect that person to know that pipe freezing is something to be cautious of, and further that it would reasonable to expect that person to take steps to prevent it from happening. In that situation, and in the albescence of a lease provision on the topic, then the tenant could be considered negligent and therefore on the hook. If the tenant is from the south or somewhere warm and is unaware that frozen pipes can burst and cause damage, and the landlord didn’t take any steps to educate the tenant, then it would not be reasonable to expect a person without that knowledge to do anything about it. In that case the landlord could be considered negligent for failing to educate the tenant.

 

Habitability

A landlord is required by law to provide a habitable property for their tenant, this means that in 49 states (Arkansas has yet to establish this law) you are required to have running hot and cold water, living space free from pests, trash receptacles for collection, reasonable protection from potential crime, and heat. Whether either party know this or not, it is a right that the tenant has by the mere fact of them renting a home. Habitability is required by the landlord and said landlord is required to keep the property in a habitable condition and is responsible for making habitability related repairs. Unless it can be proven that the necessary repairs were caused by the tenants negligence, then the landlord bears the cost of these repairs. The right to Habitability cannot be waived. Any contract provision waiving or limiting habitability requirements is not enforceable, and would not be upheld in court.

 

A Lease is a legally binding agreement

One of the most important things to understand is that a lease can require landlords or tenants to or not do certain things. For example, if the lease agreement says that the tenant is required to leave the faucet dripping when temperatures are below 30 degrees, and the tenant fails to do it, then the tenant is breaking the agreement they signed. A well written lease can prevent a lot of headaches and trouble for the landlord, and reading, and it is very important for tenants to understand their agreed upon responsibilities that are in the lease. This is one of the reasons it is so important to have someone review a lease agreement on the tenant side, so that you understand what you are agreeing to. When it comes down to it, if the lease agreement spells out that tenant must do action “a” under situations “b” and “c” and they do not do it, then they are responsible for the consequences, including the cost to repair.

 

Contact Attorney Jason Borg to draft or review a contract, or to review  association bylaws, so you can know what to expect if your pipes burst, and what you are responsible for in terms of repairs.