Q. Our condo building’s roof is in poor shape, and has not been well maintained the past few years. It’s also old, and simply reaching the end of its useful life. Recently, a few major roof leaks have caused damage in the units directly below. The board has told the affected unit owners that they’re responsible for repairing—and paying for—the damage in their apartments caused by the roof leaks. According to our bylaws, individual owners are prohibited from repairing the roof themselves (even if they wanted and could afford to), so it seems owners are thus powerless to prevent the damage in their units, and are at the whim of the board’s decision whether to make the repairs, and when. It should be noted that the affected owners reported the leaks immediately to the board, who then took months to do anything about it—during which time the leaks and damage got worse. Is it legal to force the unit owners impacted to pay for the damage in their units that was caused by the roof leaks, and worsened by the board’s inaction?

                   —Tired of Living with Leaks

A. “The fact that a roof has started to leak alone will not automatically make the trust responsible for repairing interior damage to units,” says Christopher Matheson, senior associate at Marcus, Errico, Emmer & Brooks PC in Braintree, Massachusetts. “Sometimes ‘things happen’ and nobody is necessarily at fault. With that said, if a unit is damaged by water intrusion from a negligently maintained common area, the trust may be liable for damages to the unit. The unit owner could bring a lawsuit against the trust asserting claims such as negligence, nuisance, breach of contract/covenant (for breaching the governing documents), and/or trespass. The unit owner could try to assert a breach of fiduciary duty claim on behalf of all unit owners—or could seek to remove the board entirely.

“However, while owners have these remedies, proving negligence is often not easy. The trust’s strongest defense to these claims is to examine what reasonable steps it took to remedy the water intrusion and repair the roof. Unfortunately for the trust in question, it appears to have taken few if any steps to maintain the roof. Ignoring regular maintenance, taking months to address leaks, and then making owners responsible for all the damage? A jury or judge may not look favorably on this.

“Most trusts have master policies in place and require unit owners to obtain H06 insurance policies to cover the master policy’s deductible. This is a great system that will help resolve most of the claims brought by reasonable unit owners—but it’s not an absolute bar to litigation, and trusts still must properly maintain common elements, including roofs.

“Many condominiums and trusts are strapped for cash, and must use their judgment to triage leaks and prioritize repairs—but indefinitely postponing necessary maintenance and holding unit owners responsible for repairs is not the answer. Owners are not powerless, and trusts are not all powerful. In the long run, this trust may wind up having to deal with a lawsuit that vastly exceeds the costs of the original repairs.”