Inspections Of Association Property And Liability Concerns

Suppose that your association is at a point in the repair lifecycle where common elements are deteriorating and repairs need to be made. In the normal course of events, the association requests bids from several contractors on how to fix the common elements, including the scope of the work to be done and the cost/time estimate to complete the work. This seems fairly simple, and often times, the repairs are completed by the contractor in a satisfactory manner and the board doesn’t have to worry about repairs for that particular element for several years.

What happens if the problem with the common element is a perpetual problem, that is, no matter what recommended repair is made, the problem reoccurs after a few years or even months. Many associations encounter these problems with areas such as roofs (ice damming on certain areas of the roof during winter) or grading problems/excavation issues that eventually cause leaks or cracks in the foundation.

If contractors are unable to repair these types of perpetual problems, some boards choose to hire an expert to inspect the damage and write a full report on the exact repairs that a contractor will need to make in order to fix the problem completely. These expert reports are often costly; however, many times the benefit in the long run is well worth the initial cost of the report.

For example, a particular place where rooflines meet tends to have a huge ice dam every winter that causes leaks on the inside of the units. The roofer that the association patches the same place every 2-3 years, but the roof always leaks again anyway. A construction expert would analyze the slope and materials of the roof where the problem occurs, and might recommend that the pitch of the roof be changed slightly and that a different drainage system be used. The contractor would then follow the exact instructions of the expert to achieve the desired effect, again, which translates to higher costs today than the bi-annual roof patches, however, fixing it properly will cost less in the long run.

After the association hires the expert and a report has been given, the association takes on the responsibility of ensuring that the proper repairs are made. If an expert is hired, and indicates that extensive repairs must be made, the board then authorizing a contractor to do the minimal work against the advice of the expert may open the association up to liability. If an owner incurs damage due to the board’s failure to follow an expert’s advice on a repair or remedy, the owner may have standing to sue the association and/or the board members for negligence.

However, this does not mean that the association should not seek the advice of an expert when there is a perpetual problem. Failing to seek any help to remedy a known problem may also open the association up to liability. It is the board’s duty to properly repair any damage to a common area when it is reported. Simply ignoring the problem may not only make the issue worse (i.e. a leak that is not fixed for several years leaks into the walls and causes black mold on the interior and exterior), it would also cost the association more money in the long run.

One of the tests the Courts employ when deciding if a board member has breached his/her fiduciary duty is the reasonableness test. Part of this test determines whether a decision was made in good faith for the common welfare of the owners and occupants of the condominium.

For these reasons and many more, it is important to keep an adequate reserve fund so that when repairs become necessary, they are done properly and not patched for the tenth time. In certain situations, although finances are a major factor, it may be best to impose a special assessment to make an expensive repair rather than making an inadequate repair or taking no action at all. After all, would most owners want to pay a $1,000 assessment today or have to disclose to potential buyers that black mold exists, which may lower the property values by tens of thousands of dollars or even make it is possible to sell the property at all?

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