It’s Only Natural: Taking Care of a Messy Situation

Raindrops keep falling on my head. But that doesn’t mean my eyes will soon be turnin’ red, crying’s not for me, cause I’m never gonna stop the rain by complainin’ – B. J. Thomas

Well, Mr. Thomas, I certainly have a guy who’s “complainin’” about the rain. This article is about yet another facet of the aging-in-place dilemma most condominiums face. When we speak of aging buildings, we discuss repairs, renovations, setting reserves for capital projects, etc. and when we speak of people aging, we discuss it in terms of how it affects the quality of life and interpersonal relationships within a condominium. Many times the two issues converge — for example chair lifts for stairs, switching parking spaces for the disabled, thin walls echoing TVs with the volume blasting, etc. Just as we prepare and deal with aging building problems, so must we plan and properly deal with our aging unit owner population. One particular issue came across my desk this week: the convergence of a physical plant breakdown in the form of an unsealed bathroom floor combined with a break­down in bodily functions in the form of incontinence. Not a good combination.

A man in a first floor unit sits at his breakfast table reading the morning paper, sipping his coffee when, from above, tiny drops like rain the color of dark rust fall into his cup. He looks up to his ceiling — designed to expose the rafters and the bottom of the floor from the second floor unit above. A rustic look for sure, but why is there water dripping down from the above floor?

What mischief is this? He wonders. He sees no pipe or drain. Apparently, the water is coming from the space between the floor/ceiling itself. As he gets up, some more dirty water rains down upon him. He smells it—this is no rusty water, it’s actually fecal and foul for sure. Obviously, it’s a truly disgusting problem and a major health hazard. The unit owner, being the board president, has his “three wise men” on speed dial: his golf pro, his accountant, and his property manager. He calls the property manager, who in turn calls me. And so it begins.

I do a little background check and discover that the second floor unit owner above is elderly and in mid stages of Alzheimer’s. He is incontinent. His daughter is his caretaker and washes her dad’s soiled cloths in a wash basin in the bathroom. The dirty water seeps out of the basin onto the floor through the cracks and, you guessed it, into the kitchen below. The unit owner does not respond to phone messages or e-mails. What’s the solution? Two options: Either have the unit owner’s family address the problem voluntarily or have the association fix it involuntarily and assess the unit.

I love that dirty water, Boston you’re my home. – The Standells

Which home is responsible for resolving this dirty water problem? First off, the water is coming from the unit above through the boundaries of two units and the common element in between. Accordingly, aside from the personal nuisance action between the two unit owners, there is an as­sociation issue — not only must the nuisance be abated, but the problem must be corrected in accordance with good building and sanitary standards.

The association has the authority to enter the second floor unit via language in its governing documents to the effect that the association has access to common elements and to units to ef­fect repairs to common elements. Also, under section 3.02 (a)(6) and (17) of the Rhode Island Condominium Act, the association may enter the unit to effect repairs. During the site visit with a plumber, it is determined that the fix would be to tear up the bathroom floor and a portion of the four walls and install a pan with a drain under the new floor, and then retile the floor. The excess water from the basin and in fact water from any source could then be diverted into the drain. No water could then migrate down the floor below.

The association could demand that the work be done by the unit owner. If not, the association could do the work and assess the unit owner. My suggestion would be for the board to take the com­passionate and easy route of asking the unit owner’s family to do it and to give them a reasonable deadline. That is, if a temporary barrier can be placed between the floors to catch and drain the watersafely in the meantime. If the voluntary method does not work, I would recom­mend going to court to have the board’s right of emergency access to affect the repairs ratified. I was asked whether the association could simply enter the unit and do the work. Yes, the board could do it, but should it? Is that the best solu­tion here? Since the unit has only one bathroom, obviously this would repre­sent a major intrusion — equal probably to the dirty water drops bouncing off the kitchen counter below. In any event, if the unit owner’s family decides to do the work quickly, no problem. If not, my recommendation would be to go to court to get emergency relief to enter the unit, do the work, and assess the cost to the unit owner.

The issue, obviously, is temporar­ily stopping the flow of water from answering the call of gravity. So, then, the daughter needs to be politely told not to wash any more soiled clothes in the basin for now. Putting up some temporary barrier and catch basin at the ceiling point of the unit below would be a fail-safe, but again, temporary. The first floor kitchen would obviously have to be thoroughly cleaned and sanitized and out of order until the temporary fix is in place. Next, estimates and time frame for the work need to be established. And finally, an agreement would have to be drafted and in place, detailing who will do the work and supervise the install.

As it turns out, the board and property manager were empathetic with the unit owner’s situation and the daughter was responsible and understanding enough so that the bathroom floor was replaced and or­der was restored in the condominium. Life continued on. The association appropriately treated both the physi­cal plant problem and the elderly man with marked care and dignity.

After all, it’s only natural.

At Lombardi Law Group, we can help with any of your condominium law needs. Contact us today to schedule a consultation.