Maintenance and Repair - Who's Responsible?
An issue causing significant confusion in many condominium associations is "Who is responsible for maintaining or repairing what?" The best method of spelling out the answer to this question for the unit owners is to create an easy-to-read chart based on the pertinent provisions in the documents and the Condominium Act.
The first step in determining and clearly communicating maintenance and repair responsibilities is to create a chart that shows every item that will need replacing or require maintenance or repair. This would include such items as roofs, asphalt, pools, exterior siding and fences, as well as all of the other common elements. The list should also include all of the limited common elements and portions of the units such as drywall, flooring, cabinets, doors and windows.
The next step is to go through the list and make a determination as to whether the item is a common element, limited common element or part of the unit. The association's Declaration should define which items are common elements and which are limited common elements or part of a unit. You should also review the recorded condominium plats and plans in order to make this determination. At this point you should get your attorney to review your preliminary work to make sure you are reading the documents correctly and are on the right track.
Generally common elements are both maintained and replaced by the association. Examples of common elements found in most associations include, but are not limited to, the roofs, streets, recreational facilities, exterior siding, and fences. The limited common elements are those items that are reserved for the use of less than all of the owners, such as decks, patios and stairs. For the most part, the units include those items that serve only one unit such as interior flooring, heating and air conditioning systems, drywall, cabinets, bathroom and kitchen fixtures and appliances. The definition of a unit may also include items such as pipes and conduits serving only one unit.
The third step is to determine how the documents assign responsibility for maintenance and replacement to each item. Again this will be based on the appropriate section of the Declaration. The exact language of the Declaration is very important in assigning the maintenance responsibility. There is a wide variety of definitions found in any given association's governing documents to describe a unit and common or limited common elements and there is even more diversity in assigning maintenance responsibilities for these different categories.
As an example, we have seen governing documents that designated the roofs as a limited common element for each building, assigned the expense of maintenance and replacement to the unit owners in that building, but stated that the work is to be done by the association. On another property the roof is treated as a common element with both the work and expense for maintenance and replacement being the responsibility of the association. The reason most governing documents assign the responsibility for exterior maintenance to the association is to maintain the uniform appearance of the property. It is very important in creating this list that the declaration be reviewed in detail to determine the assignment of the maintenance responsibilities and designation of who bears the expense.
Once the chart is done it should be distributed to all owners so there will be a clear understanding of who is responsible for each item.
Finally there are three exceptions that need to be noted when performing maintenance work and determining responsibility for the related expense.
1. When damages to a unit or limited common element occur because of a defect or problem on the common elements, then under the provisions of the Condominium Act the association is responsible for the performance and payment all of the repairs. For example, if the roof leaks and the roof is a common element, then the association has to fix the leak and make any repairs to the interior of the unit that occurred as a result of the leak. This code provision can be overridden by a provision in the documents.
2. When damages to a unit, common element or limited common element occur because of the negligence of a unit owner, then generally the unit owner is responsible to perform and pay for all of the repairs not covered by the association's insurance policy. For example, if there is a kitchen fire that damages both the common elements and adjacent units then the association has to make the repairs but the unit owner may be responsible for at least part of the costs of the repair.
3. Some losses, such as those due to fires or storms, may be covered by the master insurance policy. In those cases the association will make the repairs and pay the bills. Depending on the language in the Declaration, the owner may or may not have some responsibility for the deductible associated with the master policy.
As you can see, the steps are common sense but the analysis can be complex. We suggest working closely with your manager and attorney in creating this chart of maintenance responsibilities. Once you publish the chart, the confusion and the number of questions from unit owners should decrease and the board can more easily determine answers to questions of maintenance responsibility.
If you need to assess late fees on owners whom have not paid their assessment fee for a renovation project at the complex, is there a certain amount that you are allowed or not allowed to charge? How do you know what you should charge?
Thank you.
RESPONSE:
You may charge late fees only if your documents authorize it generally or the resolution by which the assessment was made included a provision for a late charge.