When faced with a maintenance and/or repair issue, the stating point, of course, is to determine whether the area in question is, in fact, an item for which the association has the duty to maintain, repair and/or replace. This may not necessarily be as simple as it sounds. While the Master Deed for the condominium generally will define the general and limited common elements of the condominium project and delineate the corresponding maintenance and repair responsibilities of the co-owners and the association, sometimes the item in need of repair may fall into a “gray area”, leaving it unclear who has the responsibility of repair. For example, while the Master Deed may provide that the Association has the duty to maintain the structure of the floor between unit levels, consider what happens when a co-owner requests that the association fix a floor in his unit that constantly squeaks when walked upon. The question then arises: Is a floor squeak a structural problem, which the association must remedy, or a “cosmetic” one that is left to the co-owner to solve? In dealing with a repair responsibility that falls into such a “gray area”, the Board would be wise to seek out advice and assistance from its legal counsel and professionals associated with the construction industry. Inaction or procrastination by the Board in addressing the issue ultimately engender legal action by a frustrated co-owner to enforce the association’s repair responsibilities, resulting in the association, at the very least, incurring attorney fees and costs to defend the lawsuit.
Associations may find it helpful to create a “repair matrix” in the form of a chart that can serve as a quick reference guide for determining the maintenance and repair responsibilities of the association and co-owners. This chart should be submitted to the association’s attorney for review and any additions or corrections.
Once the Board determines that the association is responsible for the maintenance or repair of a particular area, it should then thoroughly evaluate the scope of the need maintenance/repair and obtain estimates from licensed contractors. Obviously, this step is less complicated when dealing with simple or routine maintenance such as painting the exterior of buildings, as opposed to being confronted with the problem of deteriorating roads or roofs, for example. Some contractors may propose different repair approaches than other to solve the problem. It is the Board’s duty then to determine which repair approach to adopt. While the Board may not necessarily be compelled to select the most expensive repair, the Board may want to think twice about choosing the cheapest repair that merely represents an “band-aid” solution that may ultimately prove not to be a proper repair. While cost is an important consideration, it should not be the sole basis for the decision. Conversely, association funds in the short term may only lead to the expenditure of even more money down the road to rectify a failed “repair”.
Perhaps the most important thing that the Board should do is to take prompt action. The time frame within which the Board should act as dictated, of course, by the type of maintenance or repair that is needed. Routine maintenance associated with the appearance of the condominium is less urgent than addressing potential safety concerns or conditions that may lead to damage to the common elements or a co-owner’s unit. For example, sidewalks that are heaving and creating a tripping hazard require quicker action than scheduling the repainting of signs or buildings. For those repairs needed to correct safety hazards or to avoid damage to the common elements or units, prompt action should be taken by the Board, and any concern regarding the availability or expenditure of funds should not be allowed to pose a serious impediment to moving forward with corrective measures. If the Board has truly been attentive to its duties, a reserve fund should be available for any major repairs. The Board has a statutory duty to ensure that adequate reserves are set aside for major repairs and replacement of common elements. It is a breach of the Board’s fiduciary duty to fail to establish reserves. If such reserves are not set aside, a court will probably not listen very favorably to an association that claims that it did not have the money to make a repair, where the failure to respond resulted in an injury to a co-owner or damage to a co-owner’s unit.
How soon should a Board take action to make a repair? At least one court has held that a condominium association must perform a repair within a “reasonable time”. What constitutes a “reasonable time”, the court stated, is a question of fact that depends on the circumstances. In Lemon v. Golf Terrace Owners Association, the Supreme Court of Alabama found that the association did act within a reasonable time when it took over three years for a re-roofing project to progress from the planning stage to actual construction. The resident in that case had a serious roof leak in his unit and sued the association for failure to fix it within a reasonable time. The roofs in the project were over sixteen years old, were defectively designed and not subject to a permanent repair. More and more roofs began to deteriorate and leak. The Board appointed a committee to develop a plan to deal with the roof problem and an architect was hired to prepare a design. The Board was constrained in its actions, the court noted, because it then was required by the Condominium Documents to submit the new design for a vote by the co-owners. Once the approval was obtained, the Board then had to secure four bids from roofing contractors, one of which then had to again be submitted for co-owner approval. The court expressly acknowledged that “[t]he delay in the construction appears to have resulted from the fact that the Association had to follow the corporate procedure set out in the [Condominium Documents] for making extensive structural alterations to the roofs… The record affirmatively shows that the Association took [the co-owner’s] problem seriously.” The court then went on to document extensive efforts undertaken by the Association to try to stop the leaks in the co-owner’s unit while awaiting construction of the new roof. Thus, it appears that if a Board diligently pursues any procedures mandated by the Condominium Documents before a repair project can be undertaken, an argument can be made that the Board should not be held responsible for the delay in actually effectuating a repair. If there are no constraints on the Board’s ability to make an immediate action, however, the Board should not unduly hesitate to begin the repair.
If an association acts diligently to address a maintenance and repair issue, and does so in good faith, while being well informed, it will significantly reduce any potential liability for claims that it did not live up to its obligations.