If it's Broke, Someone's Gotta Fix It
As association counsel, one of the most common inquiries from boards and managers of community associations is who is responsible for paying for repairs to various items. The item can be anything -- from a water heater that leaks, causing damage to multiple units in a high rise – to a minor crack in a concrete stairway leading up to one unit. The tendency is to want to find clear language in the governing documents relating to maintenance and repair. But the answer is generally far more complex, requiring analysis of various portions of the declaration. While community declarations differ from association to association, the basic method of finding out who is responsible is essentially the same.
In very general terms, determining who is responsible is a three step process:
1) Where is the item found or how is it defined;
2) Who is obligated to maintain; and
3) Who pays?
If an insurance claim is involved, there is an over-arching rule because the association’s policy is almost always primary, requiring that the association’s insurance cover damage prior to requiring a unit owner to either pay or consider coverage under its own insurance. But in general, this is the process.
Where is the Item?
The first step involves determining whether the broken item is part of or within the unit; a common element; and/or a limited common element. This will be determined in the declaration. Some declarations further break down these categories with further distinctions such as “residential limited common element.” But determining whether the item is within a unit or part of the common elements is only the first step. Often, maintenance and payment obligations may differ based on other language in the declaration.
Who is Obligated to Maintain?
After you’ve determined whether the item is part of the unit or a common or limited common element, declarations should say who has the obligation of maintaining or repairing such items as a group. For example, most declarations provide that the unit owner has the obligation of maintaining items within the boundaries of the unit. Therefore, a hot water heater within a unit would be the owner’s obligation. It gets trickier for limited common elements, because many declarations split the maintenance duties, sometimes requiring the owner to do “regular maintenance” such as cleaning while the Association does substantial maintenance such as repainting and replacing items. Unfortunately, this language is not always easily found in declarations and there are generally multiple exceptions or provisos to the general rule requiring more careful legal analysis. But the obligation to maintain is not always the same as the ultimate responsibility for payment. Thus, the third step.
While it is logical that the requirement to maintain implies a requirement to pay, that is not always the case. For example, many declarations and the Condo Act provide that even though the association must perform the maintenance, the cost of maintenance or repairs to limited common elements are to be assessed to the owners directly, so that only those owners benefitting from the limited common element pay for its maintenance. Many declarations also allow the association to assess owners for repairs caused by the owner’s wrongdoing or negligence.
Because it requires interpretation of various portions of the declaration, an association can run into inconsistencies in definitions in any one of these steps, but keeping the three steps in mind should help associations and owners make more sense of their maintenance and payment obligations.