When water leaks from a Virginia condo's roof or shared pipes and damages a unit, who pays for the repair: the unit owner or the condo association?

Plain-English summary

Senator McWaters asked who pays for damage when a Virginia condominium's common element fails (a roof leak that ruins a unit's ceiling, a pipe in the common area that bursts into a unit). Section 55-79.79 of the Condominium Act sets two default rules: the unit owners' association is responsible for maintenance, repair, renovation, restoration, and replacement of the common elements; the individual unit owner is responsible for the unit. But the second rule has an exception that often controls in real-world disputes: when the damage or need for repair "arises from a condition originating in or through the common elements or any apparatus located within the common elements," the association is responsible for repairs to the unit.

Cuccinelli walked through two examples. A leak in the roof that damages a unit's ceiling: roof is a common element, so the association pays for the ceiling repair. Pipes that are not part of any specific unit but run beneath the roof and leak into a unit: the pipes are an "apparatus located within the common elements," so the association pays. Both default rules can be modified by the condominium instruments (the declaration, bylaws, and similar documents). One carve-out: § 55-79.79(B) requires the declarant to warrant against structural defects in each unit and the common elements for two years from conveyance, and that two-year warranty cannot be overridden by agreement during that window.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What counts as a "common element"?
The opinion states that the "common elements" mean "all portions of the condominium other than the units," giving the roof and siding as examples. In practice common elements typically also include structural framing, shared pipes and wiring, hallways, lobbies, parking areas, and landscaped grounds.

What does "originating in or through the common elements" mean in practice?
The AG's examples track the most common scenarios. If water tracks from the roof through the ceiling into a unit, the damage originated in a common element (the roof). If a pipe in the common area, even one running near or through walls, leaks into a unit, the damage came "through the common elements." In both cases, the default puts repair responsibility on the association.

Can the condominium documents flip these rules?
Yes. The introductory clause of § 55-79.79(A), "Except to the extent otherwise provided by the condominium instruments," lets the instruments allocate responsibility differently. Owners and prospective buyers should read the declaration and bylaws closely; they may push more responsibility onto unit owners (or insurance arrangements) than the statutory default does.

What is the declarant's two-year warranty?
Section 55-79.79(B) requires the declarant (typically the developer) to warrant each unit and all common elements against structural defects for two years from the date of conveyance. During that window, the condominium instruments cannot displace the warranty, even if they otherwise reallocate repair responsibility.

Background and statutory framework

The Virginia Condominium Act is set out in Title 55. Section 55-79.79(A) provides:

"Except to the extent otherwise provided by the condominium instruments, all powers and responsibilities, including financial responsibility, with regard to maintenance, repair, renovation, restoration, and replacement of the condominium shall belong (i) to the unit owners' association in the case of the common elements, and (ii) to the individual unit owner in the case of any unit or any part thereof, except to the extent that the need for repairs, renovation, restoration or replacement arises from a condition originating in or through the common elements or any apparatus located within the common elements, in which case the unit owners' association shall have such powers and responsibilities."

The structure is a tiered default. Subpart (i) makes the association responsible for the common elements absent contrary provision. Subpart (ii) makes the unit owner responsible for the unit, with an internal exception for damage tracing back to the common elements that flips responsibility onto the association.

Subsection (B) imposes the declarant's two-year structural-defect warranty for both units and common elements from the date of conveyance.

The opinion describes "common elements" as "all portions of the condominium other than the units."

Citations

• Va. Code § 55-79.79 (maintenance, repair, renovation, restoration, and replacement; declarant warranty)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-055-McWaters.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

May 27, 2011

The Honorable Jeffrey L. McWaters
Member, Senate of Virginia
1207 Laskin Road
Virginia Beach, Virginia 23451

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Senator McWaters:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire who is responsible under § 55-79.79 of the Condominium Act for damage caused by a failure in the common elements, and whether the default rules in this section can be modified by agreement.

Response
It is my opinion that § 55-79.79 provides a default general rule that governs repairs and renovations in two circumstances: first, it allocates the responsibility for the maintenance, repair and renovation of the common elements to the owners' association, and, second, it provides that the maintenance, repair and renovation of a particular unit is the responsibility of the unit owner, unless the damage originated in or through the common elements or an apparatus located within the common elements. In that specific situation, when the damage originated in or through the common elements or an apparatus located within the common elements, the unit owners' association is responsible for repairs to the unit. It is further my opinion that both of these default rules can be modified by agreement.

Applicable Law and Discussion

Section 55-79.79 of the Condominium Act addresses the upkeep of condominiums. It provides in part (A) that

Except to the extent otherwise provided by the condominium instruments, all powers and responsibilities, including financial responsibility, with regard to maintenance, repair, renovation, restoration, and replacement of the condominium shall belong (i) to the unit owners' association in the case of the common elements, and (ii) to the individual unit owner in the case of any unit or any part thereof, except to the extent that the need for repairs, renovation, restoration or replacement arises from a condition originating in or through the common elements or any apparatus located within the common elements, in which case the unit owners' association shall have such powers and responsibilities.

Under subpart (i), unless "condominium instruments" provide otherwise, the unit owners' association is responsible for the maintenance, repair, renovation and replacement of the common elements. The "common elements" mean "all portions of the condominium other than the units." Common elements include things like the roof or siding. In sum, subpart (i) of § 55-79.79(A) establishes a default rule that the unit owners' association is responsible for repairs to the roof, siding, and other common elements, but the owners can agree to a different arrangement.

Subpart (ii) of § 55-79.79(A) establishes a default rule for damage to a unit, as opposed to damage to the common elements. Generally, when a particular unit is damaged or needs repair or renovation, the responsibility falls to the owner of that unit. If, however, the damage or repair "arises from a condition originating in or through the common elements or any apparatus located within the common elements," then the responsibility for the damage or repair to the unit falls to the unit owners' association. For example, if leaks in the roof have damaged the ceiling of a unit, the owners' association is responsible for the repair to the unit, unless the owners have agreed to a different arrangement. Similarly, if pipes that are not part of a specific unit, but are located underneath the roof, leak and damage the ceiling of a unit owner, the damage caused by such leaks to a particular unit would be the responsibility of the owners' association because the pipes would constitute an "apparatus located within the common elements." As with the rules governing common elements, this default provision can be modified by agreement. The introductory clause to subsection (A), allowing the condominium instruments to modify the default rules, applies to both subsection (i) and (ii).

Conclusion

Accordingly, it is my opinion that § 55-79.79 provides a default general rule that governs repairs and renovations in two circumstances: first, it allocates the responsibility for the maintenance, repair and renovation of the common elements to the owners' association, and, second, it provides that the maintenance, repair and renovation of a particular unit is the responsibility of the unit owner, unless the damage originated in or through the common elements or an apparatus located within the common elements. In that specific situation, when the damage originated in or through the common elements or an apparatus located within the common elements, the unit owners' association is responsible for repairs to the unit. It is further my opinion that both of these default rules can be modified by agreement.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

I further note that § 55-79.79(B) requires a declarant to "warrant or guarantee, against structural defects, each of the units for two years from the date each is conveyed, and all of the common elements for two years." Therefore, for the first two years, regardless of any agreement to modify the default rule in subsection (A), the guarantee covers the unit buyer against structural defects to the unit or the common elements for the first two years.