Hirzel’s Condo Chronicles: Tackling Roof Leaks in Michigan Condos and HOA’s
Step into the world of legal enlightenment with Hirzel’s Condo Chronicles, the podcast brought to you by Hirzel Law. Join us as we explore the ins and outs of the legal landscape, share intriguing case studies, and dive into the heart of legal matters affecting your community association. Plus, don’t miss out on the monthly legal news updates with Hirzel’s Monthly Roundup, where we serve up the latest legal insights hot off the press. Get ready for a journey where law meets life, and wisdom meets the everyday!
In this episode, we discuss common causes of leaks, explain key insurance concepts like primary vs. secondary coverage, and outline how poor documentation, deferred maintenance, or outdated governing documents can land a Board in hot water—or dripping moldy water. We also discuss the importance of a “duty to report” clause and how Michigan associations can stay ahead of repairs.
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This transcript has been edited for clarity.
Rita Khan: Welcome back to another episode of Hirzel’s Condo Chronicles, the podcast where we break down the latest legal developments in community associations. I’m Rita Kahn, director of marketing.
Kevin Hirzel: And I’m Kevin Hirzel, the Chief Happiness Officer at Hirzel Law.
Rita Khan: Today we’re tackling a topic that a homeowner’s worst nightmare: roof leaks.
That’s right. When it rains inside, you’ve got a problem. Whether you live in a condo or an HOA, figuring out who’s responsible for fixing the issue can be as tricky as stopping that drip, drip, drip at 3:00 AM. Is it the homeowner, the association, or will both sides just blame each other until your ceiling caves in. We’re breaking down what causes this.
Kevin Hirzel: Sounds like worse than an episode of only murders in the building right here. Like, I mean, this is the mystery.
Rita Khan: We’re setting it up!
Kevin Hirzel: This is the mystery that we are gonna solve by the end of the season here at Hirzel’s Condo Chronicles.
Rita Khan: Yes.
So we’re gonna break down what causes roof leaks, who pays for the repairs, and how to prevent your condo from turning into an indoor water park. So grab an umbrella because we’re about to dive in.
Kevin Hirzel: So Rita, I gotta tell you here, so the roof leaks, they’re like bad house guests, you know, they often show up uninvited.
They make a huge mess and they cost you a lot of money, and worse, they never leave unless you take action.
Rita Khan: This is true.
Kevin Hirzel: All right.
I mean, as a former property manager, I assume you probably knew that and didn’t need me to tell you, but.
Rita Khan: So Kevin, when a roof leak happens, the first question everyone asks is, who’s gonna pay for the repairs?
The homeowner or the association?
Kevin Hirzel: It’s probably gonna be the bank because that’s where I’m at now. So that is the million dollar question in most, Michigan Condominiums. The roof is a general common element. That means the association is typically gonna be responsible for maintenance and repair, replacement of the roof if there’s an issue.
Ultimately, the master deed controls. In some cases, in the attached condominium scenario, if you have two that are side by side or clumps of buildings that only have a couple units, they have seen some documents that just say the couple unit owners are responsible for that. But generally speaking, that is going to be the association, and certainly the owners are gonna be responsible for the interior of their unit in HOA’s site condominiums. Different story with single family homes. That is just about, almost always an owner responsibility. And everybody just takes care of their own roof in that scenario,
Rita Khan: So we can’t say it enough. Read your governing documents.
Kevin Hirzel: Read your governing documents.
Read your governing documents. Read your governing documents.
Rita Khan: So, Kevin, what’s harder to find than a roof leak?
Kevin Hirzel: A contractor that shows up on time to fix it
Rita Khan: Close, but it is a co-owner who actually reads their governing documents.
Kevin Hirzel: Oh before filing a complaint? Not true. I tell you, I read my governing documents before I moved into my home, and I knew right away I was responsible for my roof. So I took that risk anyways. Okay.
So in any event, if the documents don’t clearly outline, the duty to report maintenance issues. Consider updating them, consider amending them. We often recommend adding a duty to report clause just to make sure that owners, if they’re aware of this, they don’t walk down the hallway for six months at a time, and not report anything to the management company or the board.
And that’s really where the small drip becomes a major disaster. So associations should certainly consider amending their governing documents to do this, for sure.
Rita Khan: So why is it important for associations to consider doing that and amending their documents to include that duty to report clause?
Kevin Hirzel: Certainly early reporting helps the association limit the damages, avoid unnecessary repair costs, helps keep, operating costs down, helps keep insurance costs down, reduces the costs, associated with, the finger pointing as to who’s responsible. Without it, you might not find out that you have a serious issue until it’s turned into a much bigger and more expensive problem.
Rita Khan: When it comes to leaks, it seems that Michigan roof leaks at the worst possible time.
Kevin Hirzel: Yeah. Michigan weather doesn’t pull punches. This week it’s, been in the thirties and, I think we got to, high sixties or seventies, the week before. And whether it’s snow, ice, rain, we had some high winds as well.
People were worried about tornadoes. And we pretty much have it all here. And all of those things, are gonna have an impact on the roof. Deteriorating materials on aging roofs, , is certainly, one reason and you gotta inspect those and figure out if there’s issues.
Ice dams and freeze-thaw cycles. And that’s just with the Michigan winter. And then, we have this thing called spring where it could either be summer or winter, depending on the day. Maintaining your gutters. I’ve seen that as an issue before. Poor drainage, sometimes the gutters weren’t installed properly.
I’ve seen that too. Lack of regular inspections. Just kind of the set it, forget it, and then go up on top of the roof 40 years later. And then obviously the improper installation, and how that ties in, the roof ties into the building, how things are pitched, all that kind of good stuff.
I’ve certainly seen. Add to the list, the bylaw violations. When somebody drills a hole in and puts their, ham radio, satellite dish, , all that kinda stuff up there. There’s a lot of different things that could certainly go wrong with a roof.
Rita Khan: So it sounds like we basically have the privilege of experiencing all four seasons in a week. Or sometimes in a day, but what’s the difference between Michigan weather and a warranty claim?
Kevin Hirzel: First? Why isn’t that a privilege? When I wear my shorts to work in March, I don’t want to go home in a snowsuit.
But, the only thing you can really do to prepare for this. Yes, the Trustee Hirzel Law Quarter zip. This is true. It’s good for all seasons. So that’s for sure. So anyways, I digress. But anyways, so what’s the next question?
Rita Khan: So what’s the difference between Michigan weather and a warranty claim?
Kevin Hirzel: One’s unpredictable and the other’s frustrating.
Rita Khan: Both are unpredictable. Only one comes with. Fine print and disappointment. Oh, okay.
Kevin Hirzel: Which one? Which one is that.
Rita Khan: You’ll find out in the next episode? So let’s say a unit owner comes home and they find a leak, what should they do?
Kevin Hirzel: First of all, depending on how quickly it’s moving, maybe grab a bucket or an umbrella depending on the location.
But certainly, take some kind of a measure, put a tarp down, whatever it is to contain a leak, document the damage, photos, videos, all that kind of good stuff. Report it to the management company or the board right away. Take a look at your governing documents, insurance policy to figure out who’s gonna be responsible for what aspects, the exterior, the interior, the contents, whether there’s, an incidental damage clause, that’s gonna limit the association’s liability, for any interior damage that may have been caused by, the common elements is a pretty common provision.
A lot of documents, and then take, reasonable steps to prevent additional damage. So waiting, just doesn’t worsen the. The leak, it complicates coverage, liability and just frustrates everybody.
Rita Khan: So speaking of coverage, there’s usually different types of coverages and carriers that are indicated in a policy.
So what’s the difference between a primary and a secondary insurance carrier?
Kevin Hirzel: And so that, that’s typically gonna be determined by the language of the governing documents. And so a modern well set, drafted set of documents in Michigan. It’s typically gonna have a no-fault liability system where it says, doesn’t matter necessarily what the cause is.
If you’re responsible for appearing it, you’re responsible for ensuring it. And so the association’s gonna be responsible for the exterior and the common elements. Owner’s gonna be responsible on the inside, and they’re gonna have primary responsibility for anything on the interior as well.
And that voids, overlapping coverage. That way the owner and the association are both paying for the same coverage. And it also avoids a lot of disputes once you have a claim as well. And so you wanna make sure that is clearly specified. And I can tell you in a lot of these older documents, it’s terrible because, they were written 30 years ago, they had provision that says.
The owners or the association is responsible for any damages it causes to the unit except for upgrades. And then you’re back wondering, who and when and what, upgraded the kitchen, the flooring, all this kinda like wonderful stuff. And then what’s the difference between that, what’s originally there?
Trying to hunt that down. And I can tell you that really delays claims and it’s frustrating. So having clear lines about who’s responsible, is really the best way to go here. And don’t forget, some of the stuff, it just may not be covered by insurance at all. And so a lot of insurance policies, they have mold exclusions.
There may be deductible issues depending on the amount of deductible. A lot of associations are raising deductibles because, as a way to combat these rate increases. And so a lot of instances you’re gonna see, potentially disputes about who has to pay. And that could end up in litigation.
Rita Khan: And sometimes the question isn’t even whose policy pays it could be, did the owner cause the problem?
Kevin Hirzel: Exactly if an owner violated the governing documents, if they went up there, they started drilling holes in the roof, to put on, a sign, install patio furniture, their bird feeder, whatever it is.
They could just be responsible for that. You know, most documents will say if the owner caused the damage, then they’re responsible for it. So that’s why it’s important for associations. To investigate, have an expert come out, figure out what caused the issue to figure out whose responsibility it is before making a claim.
Rita Khan: So in terms of prevention, what can boards do to avoid roof disasters?
Kevin Hirzel: The open air living, is certainly, a fine option. Nice. You know, in touch with nature. But for those of you who are not interested in that, certainly take a look, at the roof.
You know, maybe send somebody up there to inspect it, at least once a year. A lot of times, roofing companies, they’re just gonna use drones to do this, and they can get pictures and cameras and do that, pretty safely. Certainly every three to five years you should be getting a reserve study, and it should be happening in, in that context as well.
Make sure you keep records of those inspections. Gutters don’t clean themselves, right? Gutter guards aren’t nice, but, make sure that those are clear ’cause that’s gonna cause ice damming if those get too black. Backed up. Make sure you’re hiring licensed and insured people.
That are qualified to actually do this work or somebody, that’s not just an expert in flat roofs, but they can also do shingles, depending on what type of roof you have. And fund your reserves. Do not rob the roof to pay for the landscaping Rita. So I can tell you failing to fund the reserves or neglecting inspections, that’s probably the source of a lot of roofing issues.
Rita Khan: So Kevin, what’s the fastest way for a board to upset an entire community?
Kevin Hirzel: I would typically say raising assessments significantly without explanation.
Rita Khan: That’s true in a very close second, but it’s using the reserve fund for a lobby chandelier while the roof is leaking.
Kevin Hirzel: Yeah, that must be one hell of a chandelier.
Rita Khan: You know, you mentioned nails in roofs and, adding some, enhancements to that. But let’s talk about critical repairs. So what if a board delays repairs for too long?
Kevin Hirzel: So certainly the documents say the association, has a duty to repair the common elements.
If it’s a critical repair though, that could lead to other issues just besides being sued. Right now, Fannie Mae, Freddie Mac, it’s a big issue after Surfside. And they developed guidelines. And they basically say that loans will not be given for people to secure mortgages.
They won’t be underwritten, if any of the major structural components of the building, have damaged, they’re in need of critical repairs. The roof is part of that. But the guidelines, let’s call out the examples is like one minor roof leak in one unit is. Probably not gonna be deemed a critical repair, but if this, the roof leaks in a lot of space, spots or has, a bunch of issues that typically is gonna be deemed a critical repair.
So really what they’re looking at, , things like structural damage mode, safety hazards. Has the association been sued by anybody as well. And so they take a look at all that. And so there’s certainly a lot more stringent standards than there used to be. And what I’m seeing recently, there’s been underwriters are digging into this a lot more than they used to, even when the guidelines first came out.
But certainly. How they define critical repairs is material deficiencies. If you know they’ve been left uncorrected, they could result or contribute in a critical element. Failing within a year. Like I said, mold, water, intrusions, property damage due to leaks is a big one. If you have any kind of tickets from the, the city.
Ordinance violations, advanced physical deterioration. And then also you’re gonna take a look at your budget, your meeting minutes, figure out whether you have any unfunded repairs costing more than, 10 grand that could be undertaking, within the next 12 months. And take a look at that as well as another way they spot and identify these critical repairs.
So certainly ignoring this, it can. Impact your building’s marketability and it can get you on the dreaded blacklist.
Rita Khan: Whoa. You’re talking about the Fannie Mae and Freddie Mac Blacklist. Right.
Kevin Hirzel: That’s the only one after the James Spader TV show went off the air. Right.
Rita Khan: At least that I’m aware of.
Kevin Hirzel: Right. , But that’s right. So if the association has unresolved structural issues or unfunded repairs, you can get on the blacklist labeled ineligible project. And so that means buyers aren’t gonna be able to get conventional loans.
And so you’re pretty much limited to cash buyers. Or people going to smaller banks or credit unions that aren’t looking to sell those loans to Freddie May and Freddie Mac. And so it’s just gonna be a lot harder for them to get a mortgage, although it may not necessarily be impossible. So there, there’s certainly Michigan buildings, that are already on that list.
And so you don’t wanna end on that list as well.
Rita Khan: So let’s say things just go south and the board ends up in litigation. What happens then?
Kevin Hirzel: Why doesn’t it have to go south to end up in litigation? That’s what I do. I mean, it could go north. That’s what I do for a living. Oh, whoops. Alright. I’ve known you for a long time, so I’m willing to ignore that comment and move on, Rita.
Okay. We have a podcast to finish here. We do. So first you gotta determine the cause. Was it a construction defect? In a lot of these circumstances, it stinks as the association, four or five years down the road they’ll have known about this and then, come, and we have , a short turnaround time in Michigan.
If you’re gonna go after a developer. Three years from the transition control date, if the roof was installed prior to the transition control date. If it was installed afterwards, it’s two years. When you spotted the issue, it started leaking, you had some kind of an issue. So certainly if you see something, in other cases you’re gonna have a, a longer, statute maybe you had a builder out there or a contractor and they did a roof repair and it failed and it actually.
Made it rain fully inside of your building instead of partially. And so in that circumstance, it’s gonna be more of a six year statute of limitations, but, they could be at fault for that or exacerbated the problem or some cause some kind of damage. Owners also do this as well.
And just make sure that you’re looking beyond like a typical maintenance dispute. And actually figuring out what the cause is. And it could be somebody installed gutters wrong. It could be, it was designed wrong. The roof decking was installed wrong. I’ve seen all of these things before.
And so really try and, and drill down and figure out what is causing these issues with that roof. And certainly, figure out, if it’s an insurance dispute, whether there’s something that is defined as an occurrence under the. Insurance policy, and that there could potentially be coverage there as well, before, moving ahead with, a huge assessment.
Rita Khan: So you definitely wanna act early, know your responsibilities and don’t wait for the ceiling to collapse.
Kevin Hirzel: And move north. Yeah. And move north. Exactly. Make sure you know if roof repairs typically gonna be a major contract, have the attorney take a look at that. Perform your regular inspections, make sure you understand the cause.
Hire an engineer, have somebody come out and take a look at that and make sure you’re holding the right. Person responsible for that. Make sure that you’re doing, enforcing the maintenance obligations. You’re fiscally responsible. You understand your roof isn’t gonna last forever. So we can, we handle this stuff every day.
And so we certainly can help keep your association outta hot water. But it’s gonna be kind of rare, whether it’s, the repair causation, holding somebody responsible, that there’s not gonna be some kind of a legal issue or, or a component to that. And so, like I said, we’re gonna keep you outta hot water so you don’t end up cold.
I. Moldy or dripping in water,
Rita Khan: hearing that drip, drip, drip at 3:00 AM
Kevin Hirzel: but yeah. Yeah. I gotta, I got a joke I gotta tell you before we finish up here. The goal here is to stay dry. So Rita, do you know what the leading cause of dry skin is in the United States?
Rita Khan: I do not. Towels. Oh.
Interesting. Never wanna guess that one, so.
Kevin Hirzel: So may make, make sure you get some towels if you got a leaky roof.
Rita Khan: Yes. Well, that wraps up today’s episode of Hirzel’s Condo Chronicles. Roof leaks may be a headache, but knowing your rights and responsibilities can save you from a financial flood. Whether you’re a homeowner or a board member, staying proactive with maintenance and understanding your governing documents is the key to keeping a solid roof literally and legally over your head. Until next time.
Each month, step into the world of legal enlightenment with Hirzel’s Condo Chronicles, the podcast brought to you by Hirzel Law. Join us as we explore the ins and outs of the legal landscape, sharing intriguing case studies, and dive into the heart of legal matters affecting your community association.
Plus. Don’t miss out on the monthly legal news updates with Hirzel’s monthly roundup, where we serve up the latest legal insights hot off the press. Get ready for a journey where law meets life and wisdom meets the everyday. The information on this podcast is intended for informational purposes only.
This podcast is not intended to provide legal advice. The purpose of this podcast is to provide general education and information. This podcast may not reflect the most recent legal developments or future changes in the law. Hirzel law Disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this podcast, including the accuracy of any content to the fullest extent permitted by law.
No business or client relationship is established by listening to this podcast. Any cases, laws, or other scenarios discussed during this podcast are unique to that specific situation and are not indicative of a specific outcome in any other legal matters.
