By Robert Nislick

It seems that no one has been spared as this historic winter continues to wreak havoc on Massachusetts homeowners, business owners, landlords, tenants, condominium trustees, condominium unit owners, and property managers.

Roofs are collapsing under the heavy weight of snow and ice. Problems with insulation and ventilation in our buildings are causing ice dams to form. When the snow and ice melts, water is dripping through our ceilings, and into our homes, stores, offices, and warehouses.

Water infiltration from melting ice dams is causing us to suffer significant property damage. An insurance adjuster quoted in a recent Boston Globe article said that “once it’s leaking, the damage is already done”. He also noted that repair costs can reach into the tens of thousands of dollars.

Tempers are flaring as disputes simmer between landlords and tenants, condominium trustees and unit owners, homeowners and insurance companies. These controversies will certainly spawn litigation as people will not agree on issues such as: who is responsible for fixing property damage; whether the negligence of a builder, condominium board, or landlord caused the property damage; how to prove the damages suffered by a condominium unit owner or a tenant; whether any remedial efforts that were taken were sufficient; whether leaking water caused by melting ice dams impairs the habitability or quiet enjoyment of a dwelling; and whether a contractor did his job satisfactorily, just to name a few.

Ice dams and water infiltration are particularly interesting in the condominium setting. Suppose you live in a townhouse. Ice dams have formed on the roof. Melting is causing leaking in your unit and your property is becoming damaged. You want to call someone to clear the ice dams of the roof. But the roof is common area. A condominium board of trustees has a maintenance and repair obligation concerning common areas. To the extent that the trustees’ failure to clear ice dams and prevent water leaks damages property, the unit owner may be able to assert a successful negligence claim against the condominium trust. There should be no question that the condominium trust should be as responsive as any reasonable homeowner would be in addressing ice dams, arresting water infiltration into units, and compensating unit owners for resulting property damage.

Several Massachusetts cases discuss ice dams. These cases should give the owner, trustee, or property manager some insight into how to respond when someone complains about an ice dam or a resulting water leak.

In one Housing Court case, Gresci v. DiCola, Boston Housing Court No. 96-03706 (Winik, J.) (Oct. 9, 1996), a tenant asserted counterclaims based on bad conditions in her apartment. One January night, the landlord received calls from tenants that water was entering several apartments. The landlord went to the building the next morning. He discovered that an ice dam measuring between 7 and 8 inches of ice had formed on the roof of the building. The next day a roofer came and removed the snow from the roof. The landlord asked the tenant if water had entered her apartment. It had, and the tenant’s carpet was wet. The landlord brought a contractor and an insurance adjuster to the building. The landlord hired a contractor and a roofer to make necessary repairs to the building resulting from the water penetration problems caused by the ice dams. The repairs were completed and there were no more complaints about water penetration.

The Court found that the existence of ice dams did not constitute a material breach of the implied warranty of habitability and did not cause any serious interference with the tenant’s quiet use and enjoyment of the premises. The Court noted that the landlord addressed the tenant’s complaints with reasonable promptness, and accordingly, the landlord did not violate G. L. c. 186, § 14.

In another Housing Court case, Joyston Realty Props., Inc. v. Evans, Boston Housing Court No. 96-01957 (Winik, J.) (Oct. 1, 1996), on one late January day, there was a roof leak which caused water to enter an apartment. The leak was caused by an ice dam which formed on the mansard roof. The tenants notified the landlord. The landlord cleared the gutter, fixed the roof, and repaired the ceiling. The tenants claimed that water leaked into their apartment. The Court found that the tenants never notified the landlord of the leak, and that otherwise the landlord neither knew nor should have known of the problem. The Court found that any damage to the tenants’ apartment was minor and did not interfere with their quiet use and enjoyment of the premises.

In another Housing Court case, 454 Beacon Street, Inc. v. Rahcola, Boston Housing Court No. 94-01592 (Lewis, C-M) (Jun. 1, 1994), the tenants suffered a severe ceiling leak in their living room which was caused by an ice dam. In response to the tenants’ complaints, the landlord removed the ice dam and repaired the roof within a reasonable time. The tenants’ rent withholding defense failed.

In another Housing Court case, Russo v. Brobby, Worcester Housing Court No. 09-SP-1550 (Sullivan, J.) (Jun. 16, 2009), the court found that several conditions, of which ice dams were one, constituted a breach of the implied warranty of habitability, but did not constitute a breach of the covenant of quiet enjoyment.

If you find yourself in such a dispute, contact Robert Nislick, a Massachusetts real estate attorney, today.


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