Condo Media - October 2022 - 49

If the association fails in its responsibility
to maintain the common areas,
however, it opens itself up to liability.
In the above example, the board at
Deer Fur Commons has done just that.
The board has deferred maintenance
and relied on passing the costs on to
the unit owners. Unit owner Nomar
Ovthiz will likely be successful in his
claim for damages against the association.
The association's negligence in
maintaining the common area can
make it responsible to an effected
owner for damages sustained.
The association could end up paying
not only for the repairs to Nomar
Ovthiz's unit, but also for all of the
unit owner's out-of-pocket expenses,
including attorneys' fees.
Section 4.17 of the Act states that,
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" If a declarant or any other person subject
to this chapter fails to comply with
any provision hereof or any provision of
the declaration or bylaws, any person
or class of persons adversely affected
by the failure to comply has a claim for
appropriate relief. Punitive damages
may be awarded in the case of a willful
failure to comply with this chapter.
The court, in an appropriate case, may
award reasonable attorney's fees. "
While it is always nice to try and
keep condominium fees low, an association
cannot avoid its statutory and
contractual obligations to maintain
the common areas. Doing so creates a
host of problems, including those with
insurance and potential safety risks.
Trying to pass the cost onto the unit
owners under the ordinary repair obligations
in the documents and statute
will almost always backfire. It is best
practice to have a reserve study done
and make a realistic plan for common
area maintenance. The risk of not doing
so is far greater than any temporary
savings incurred from kicking the can
down the road.
n MARY-JOY HOWES, ESQ.
IS A PARTNER IN LOMBARDI LAW
GROUP AND CO-CHAIR OF THE
CAI RHODE ISLAND LEGISLATIVE
ACTION COMMITTEE (RILAC).
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October 2022 CONDOMEDIA 49

Condo Media - October 2022

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