Condo Media - August 2024 - 36

The Region VERMONT
Not My
Job!
Or Maybe It Is...
Wait, What's the Job?
[By Christina Jensen, Esq.]
If association board questions
were plants, questions concerning
allocation of responsibility for maintaining
and repairing parts of the
communities they govern would be
dandelions: popping up nonstop and
sometimes in the most unlikely places,
but manageable with a little effort.
STATUTORY ALLOCATIONS
Vermont's Common Interest Ownership
Act (the Act) establishes a default
for maintenance of common elements
and units: associations are responsible
for maintaining, repairing, and replacing
the common elements, and unit
owners are responsible for the maintenance,
repair, and replacement of units.
Common elements include limited
common elements, although the right
to use them is limited to one or more
(but fewer than all) of the units.
There are a few ways that this
apparently straightforward allocation
can get complicated:
l It applies only to communities
governed by the Act, so communities
created before 1999 are not governed
by it unless they've adopted the Act;
l It can be modified by
the declaration; and
l It depends on the definitions
of common elements and units
in the declaration.
36 CONDOMEDIA August 2024
GOVERNING DOCUMENTS
We'll assume here that the community
is governed by the Act and that the
definitions of common elements and
units are consistent. (If only this were
always the case!)
The declaration can allocate responsibility
for maintenance, repair, and
replacement differently than the Act.
If it does, the declaration's provisions
are controlling.
This can make a lot of sense. In a
community of duplexes where units are
defined as including building exteriors,
treating shared roofs as an association responsibility
(and collecting reserves appropriately)
can preserve harmony both
visually and socially. In a community of
detached single-family units, treating
limited common element yards as unit
owner responsibilities may be desirable.
In a mountainside community where the
topography dictates very different decks
and similar structures, it may be fair to
allocate responsibility differently.
The one responsible for doing the work
is not always the one responsible for the
cost. Under the Act, the declaration may
require that expenses for maintenance,
repair, and replacement of limited
common elements or those benefitting
fewer than all units be assessed against
those benefitted. Thus, where common
elements include a courtyard shared
by four units in a 28-unit community,
the declaration may allocate the cost of
maintaining the gardens in the courtyard
to the four units sharing it.
It's understandably tempting, especially
for busy volunteer boards, to continue
the practices of prior boards and to accept
" the way it's always been done, " and
to continue past practices with respect to
maintenance questions. It's worth revisiting
the statute and governing documents
- particularly the declaration - regularly
to ensure that the association's practices
are consistent with them. It's always better
to identify discrepancies and address
them proactively than to have to respond
to a complaint of a violation; it's also
more economical and much less stressful.
WHAT IF WE DON'T
LIKE THE ANSWER?
If the maintenance, repair, and replacement
allocations established by
the declaration and the statute aren't
satisfactory, it can usually be modified
for associations governed by the Act by
amending the declaration. This applies
equally to responsibility for performing
work and responsibility for the cost.
A proposal to amend the declaration
to address them may spark discussion
within the community leading to better
educated and engaged members and
increased confidence in the board, even
if the end result is that the allocations
remain unchanged.
n CHRISTINA A. JENSEN IS AN
ATTORNEY OF COUNSEL AT PRIMMER
PIPER EGGLESTON & CRAMER PC IN
BURLINGTON, VERMONT.
Condo Media - August 2024

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