Condo Media - September 2018 - 28

MISUNDERSTANDING
The governing theory
is straightforward.
Owners are generally
responsible for
maintaining
anything within
the boundaries
of their units and
associations are
generally responsible
for the common
areas. But if you
view the drafting of
legal documents as
an art form, drafters
of condominium
documents are not
always as artful or
as precise as they
should be.

CONDOMEDIA September 2018

Boundary descriptions in the master
deed are often confusing and sometimes irrelevant. Ownership distinctions and maintenance duties, outlined
in the bylaws or deed of trust, don't always match the boundary descriptions.
The documents may be silent on some
issues and confusing on others, leaving
boards and owners uncertain about how
maintenance and repair obligations
should be handled and how the costs
should be allocated.
CUTTING AND PASTING
You would think that newer documents
would avoid the problems of older
ones, but, Brooks notes, cost-conscious
developers often "cut and paste" the
language they've used before, repeating
fuzzy language rather than clarifying
it, failing to consider differences in
structure and design, and sometimes
omitting components like skylights that
are features of a new development but
weren't included in the old one.
Some concepts are difficult to
grasp, even if the documents are clear.
Take doorbells for example. They
are located outside the studs, making
them theoretically a common area
maintenance obligation of the association. But because the doorbell operates
equipment inside the unit, the owner is
responsible for it.
Bizarre boundaries and overlaps
between units and common areas add
to the confusion, David Abel, CMCA,
executive director of property management at FirstService Residential,
observes. For example, vents, fans,
and fireplaces located inside owners'
units may link to components that run
between common area walls, through
ceilings, or under floors, creating an
open question about how owners are
supposed to maintain them or whether
they are required to do so.
Bathtub drains can also pose tricky
questions, Hugh Shaffer, CPM, PCAM,
Barkan Management Company, Inc.,
AMO, and general manager at Harbor
Towers Condominium in downtown
Boston, says, both because of their configuration and the way some documents

describe them. In a sink, he explains, the
drain is under the fixture; in a toilet, it is
part of the porcelain bowl. But in a bathtub, the trap is below the tub and below
the defined boundaries of the unit.
"Some documents say the owner
is responsible for anything that is
contained within their unit or that
exclusively serves their unit," making
the drain, Shaffer suggests, clearly
the owner's responsibility. But other
documents substitute the word "and"
for "or." In those cases, because both
conditions aren't met (the drain exclusively serves the unit, but it is not also
located within it) "maintenance can
arguably be either a board or an owner
responsibility," Shaffer says.

Condo Media - September 2018

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