Condo Media - May 2023 - 15

TUESDAY, MAY 16
12:00 P.M. TO 1:00 P.M.
CLAIM VS. LIABILITY
As a preliminary matter, it is worth taking
a moment to review the distinction
between the risk of a " claim " and the
risk of " liability. " A " claim " is an attempt
to impose liability for alleged damages,
where " liability " is the legal obligation
to pay for or otherwise be accountable
for the damages. Unfortunately, as we
all know, associations can be sued for
any reason, even seemingly unreasonable
ones. These claims could arise, for
example, if a non-resident is injured
while walking/running/biking through
the common areas that are in need of
maintenance or repair. The claim may
take the form of a demand, legal action,
or both (likely in that sequence). As I
will review in more detail below, the
risk of liability is distinct from the risk
of a claim; however, even if the risk of
liability is low, the risk of claims should
not be ignored. While an association
may ultimately prevail in any litigation
based on unfounded or improper
claims, thus avoiding liability, the costs,
time, frustration, and uncertainty associated
with defending against claims
must be considered in weighing what
types of protections to implement.
Liability requires a prospective
plaintiff to demonstrate that he or
she is entitled to relief under some
applicable legal theory. The most
likely causes of action associated with
an injury or damage arising out of an
alleged failure to properly maintain
condominium common areas would
be some form of tort: negligence,
breach of duty, etc. In any such action,
a plaintiff would have to demonstrate
certain elements of the claim by a preponderance
of the evidence to recover
a judgment against the association.
In most cases, this will require the
plaintiff to develop facts and evidence
associated with the claim that support
a theory that the association (or its
board, agents, etc.) acted in violation
of some legal duty.
For example, in a negligence cause
of action in Massachusetts, a plaintiff
must demonstrate: (1) a legal duty
owed by the defendant to the plaintiff;
(2) a breach of that duty; (3) proximate
or legal cause; and (4) actual
damage or injury. With respect to the
first element (legal duty), courts have
held that board members have an
obligation - a duty - to make appropriate
repairs of community common
areas to the extent that they know, or
should know, of a problem or defect
that could cause damage. We can see,
from the hypothetical described in the
question on page 14, that knowledge of
a defect in the common areas coupled
with a duty to address that defect
could be a basis for potential liability.
Said differently, if a board fails to correct
a defect that it has an obligation
(under the governing documents or
applicable law) to correct, and if that
failure causes damage or injury, that
could certainly present a problem for
the community.
But what about the fact that the
association simply doesn't have the
funds to make the repairs? Won't
that be a defense? These are questions
that community association law
practitioners hear quite frequently,
but the answer, unfortunately, is likely
to be " no " in nearly all cases. We live
in a post-Surfside world now, where
the real and potentially tragic risks
of deferred maintenance are at the
forefront of everyone's mind. Money
will always be a factor in how associations
manage their property, but it
cannot be the only one. The landscape
continues to evolve after the terrible
events at the Champlain Towers, but
one thing is clear: Board members
and managers who know of defects
must make proper plans to address
them, even if that means approving
unpopular or uncomfortable budget
increases. The risk of not doing so is,
frankly, greater than the risk of all the
negative attendant circumstances of a
lawsuit - it could be someone's health
or even life.
Ask About Our Complete
Envelope Projects
WWW.1800NEWROOF.NET *
855.552.6273
CT HIC # 575920 * MA HIC # 191093 * MA CSL # 070626 * RI Reg. # 36301 * ME CHARTER # 20110918F
May 2023 CONDOMEDIA 15

Condo Media - May 2023

Table of Contents for the Digital Edition of Condo Media - May 2023