Condo Media - September 2018 - 30

MISUNDERSTANDING
affect, or have the potential to affect,
other units or common areas.
Managers and boards use a carrotand-stick philosophy to encourage
repairs they can't mandate: Using the
window replacement example, Abel
says, the carrot for owners would be
an attractive bulk price on windows
if all of them are replaced, and labor
costs would be an association expense.
The stick for uncooperative owners:
"We remind them that if their window
leaks and damages other units or common areas, they will be responsible
for the cost." And when these owners
eventually replace their windows,
Abel points out, they will have to
pay for the labor involved.
EXCLUSIVE USE AREAS
Most documents specify that owners
with an exclusive right to use an area,
such as a deck, also have the obligation
to maintain it. But few documents
distinguish between ordinary main-

tenance (sweeping and painting) and
structural repairs-the replacement
of stairs or supporting posts, for example-that might be required as the
building ages.
Owners would no doubt argue their
maintenance obligation is limited
to the surface of the deck; structural
components, which are part of the
building, should be a common area
expense. "And there's some logic to
that argument," Sandy Moskowitz, a
shareholder in the Boston law firm
Davis, Malm & D'Agostine, P.C., agrees.
But owners who don't have decks
will object to sharing maintenance
costs for a component they can't use.
"So now you have two arguments that
make sense," he notes. "If the documents aren't clear, it gets very dicey
for board members trying to make an
equitable decision. They often end up
'splitting the baby' in some way." The
best solution, Moskowitz says, "may be
the one that makes everyone unhappy,

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30

CONDOMEDIA September 2018

which also ensures the board is going
to be getting a lot of complaints."
Rooftop decks create additional
complications, Brady notes. Even if
the documents make the owner with
exclusive use rights entirely responsible for the deck, the roof under it is
a common area. If the roof has to be
repaired or replaced, the deck will have
to be removed-and that will usually be
an association expense. "Boards don't
like that answer," Brady says.
There's a different answer, which
owners won't like, if the deck was
not part of the original structure but
was installed by the owners under a
reserved right to make the addition.
In that case, Brady explains, the owner
foots the removal and replacement bill.
HEALTH AND SAFETY ISSUES
If the health and safety of owners or
the protection of property are involved,
boards may be able to mandate the
maintenance of components within

Lisa Allegro
Vice President,
Senior Relationship Manager
lallegro@simsburybank.com
860.651.2064
Condo Media - September 2018

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