Condo Media - September 2018 - 33

SPEAKING
C

ondominium professionals agree that poorly drafted
documents are responsible for most of the confusion about maintenance responsibilities in a common interest ownership community and the source of most
disputes related to them. (See feature article on page 26.)
Amending the documents, the obvious solution, is very
difficult. If owners won't approve a maintenance amendment, a maintenance resolution may be an alternative.
"Resolutions are a valuable tool for clarifying owners' obligations" that may not be stated clearly in the documents,
Patrick Brady, a partner in Marcus, Errico, Emmer & Brooks,
P.C., explains. "They are a good alternative if you can't get
the owners' votes required to amend the documents."
Sandy Moskowitz, a shareholder in Davis, Malm &
D'Agostine, P.C., agrees that maintenance resolutions can
highlight existing obligations of homeowners. But the
operative word, he emphasizes, is "existing."
"The resolution puts a fine point on an obligation owners already have," he says. "If the obligation exists in the
documents, even broadly, the board can certainly say it is
adopting a resolution to provide specific guidance on it.
But if the resolution attempts to create a duty (outside
of the common areas) that doesn't otherwise exist,"
Moskowitz says, "it goes too far."
OBLIGATION TO ENFORCE?
Industry attorneys generally agree that the language in
most governing documents requiring boards to preserve
and enhance property values gives boards the authority
to impose some maintenance obligations on owners.
The more difficult question is whether boards also have
an obligation to monitor and enforce compliance with
the maintenance resolutions they adopt.
"We generally try to stay away from enforcement,"
Brady says. "You don't want to create a duty for the board
that it doesn't otherwise have [and that would give rise
to] a negligence complaint if the board fails to [execute] it.
You want to be careful about creating affirmative defenses
for owners."
In that sense, Brady and other industry attorneys suggest, the maintenance resolution serves mainly to put
owners on notice that they have specific obligations and
will be responsible for any damage that results from their
failure to comply. It is more a means of holding owners
accountable after the fact, they say, than proactively
ensuring their compliance.
However, boards do have an affirmative obligation to
preserve property and to protect the health and safety
of owners, which arguably requires them to verify that

MAINTENANCE RESOLUTIONS
MAY BE AN EFFECTIVE OPTION
owners perform maintenance required to address known
risks-for example, cleaning their chimneys and dryer
vents to prevent fires.
Brady suggests that boards make essential health-andsafety-related maintenance common area obligations
rather than designating them as owners' responsibilities.
This ensures both compliance and consistency in the
quality of the work. If owners insist on managing the
maintenance themselves (typically their right if a component is located within their unit), Brady says, boards
should require them to document the work, exercise the
association's right to perform the maintenance if owners
don't, and bill them for it.
LIABILITY RISKS
Mandating owner compliance with maintenance duties
"can get a little gray," Hugh Shaffer, CPM, PCAM, Barkan
Management Company, Inc., AMO, general manager at
Harbor Towers Condominium in downtown Boston, agrees.
But he thinks the association's broad responsibility "to protect the property as a whole" justifies periodic inspections
of owners' units, not just for health-safety issues, but for
any maintenance concerns.
Failure to identify a problem could create potential
liability for the association, he agrees-the reason some
attorneys, like Brady, advise against association inspection
programs, and the reason, Shaffer says, "boards should
consult their attorney before implementing these procedures, to ensure that they are abiding by the condominium
documents and acting within their power."
Shaffer also thinks liability risks are limited by the "prudent man rule" courts typically apply to board decisions
and outweighed by the board's responsibility "to do whatever they can within their authority to prevent damage to
a multi-million-dollar asset."
While Brady agrees that boards can make a general
argument for broad maintenance oversight, he thinks
they should exercise both common sense and restraint.
"Boards can't go into every unit and inspect everything
all the time." It is reasonable, he says, to expect owners
to understand that "they are responsible for doing certain
things-if their sink leaks, they have to fix it. My fear,"
he explains, "is that boards become over-involved,"
exerting excessive and unnecessary control over owners.
He compares over-involved boards to "helicopter
parents."
Boards that try to legislate everything owners can,
can't, and must do in their homes, he cautions, "can
end up creating more problems than they solve."
September 2018 CONDOMEDIA

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Condo Media - September 2018

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