What is my recourse if the upstairs owner is not performing repairs?

UPDATED: Oct 1, 2022

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What is my recourse if the upstairs owner is not performing repairs?

I own/live in a condo. The upstairs unit has on 3 occasions leaked water from a drainage issue onto my garage ceiling. We filed insurance claims twice and they were unable to win, due to

Asked on July 8, 2018 under Real Estate Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Whether you can win depends on the evidence you have. They are only liable--or have to pay for damage or repair costs--if they were at fault in some way; typically, by negligence, or unreasonable carelessness, such as in not repairing a known leak and allowing it to continue to cause damage. Since you would be suing her (you are the "plaintiff"): that is, the burden of proof is on you and you must prove by a "preponderance of the evidence" (or that it is more likely than not) that she was aware of a damage-causing leak AND had sufficient time/opportunity to repair it. If you can show those two things you can show her fault or negligence; if you can also show a causal connection--e.g. that it was her failure to repair that caused your loss or damage--you can win your case and recover any amounts or losses you incurred not already paid by insurancer. The key is, *you* must prove your case with evidence--she does not have to disapprove fault. If you fail to prove her fault, you will not win.

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