Q: If there is damage to my roof and it leaks into my condominium unit and I reported it to the board three times with no repairs made, can I repair it myself and deduct the cost from my common charges? Please advise ASAP. Your attention to this is greatly appreciated.
A: “We were asked to address the issue,” says Cranston, Rhode Island-based attorney Richard Palumbo, “of whether a unit owner may withhold common assessment expenses to pay for repairs to a common element that is causing damage to the unit owner’s unit. For the purpose of this response, we will assume that the condominium in question was created after July 1, 1982 or has voluntarily accepted the provisions of Rhode Island General Laws Chapter 34-36.1, known as the Rhode Island Condominium Act (hereinafter the “Act”), making it subject to the provisions of the Act.
“RIGL §34-36.1-2.03(c) states that “(i)n the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with this chapter.” Pursuant to section 34-36.1-3.07 of the Act, unless inconsistent with the declaration, the condominium association is responsible for the maintenance, repair and replacement of the condominium common elements and each unit owner is responsible for the maintenance, repair and replacement of his or her unit. The Act is silent regarding the right of a unit owner to repair a common element if the condominium association neglects to do the same. Therefore, the declaration of the condominium would need to be reviewed to determine if this issue is directly addressed. If the declaration addresses this issue then the unit owner would need to follow the provisions set forth in the declaration to remedy this situation.
“If the declaration is silent regarding this issue, then the unit owner still has available options and remedies. The unit owner would first make a formal request (in accordance with the declaration) for the association to make the repairs to the common elements. If the request goes unanswered, then the unit owner could consider arbitration (if provided for in the declaration) as a means to settle this type of dispute. The unit owner could also consider litigation as a means to force the association to make the requested repairs.
“If the potential damage to the unit is immediate and extreme, then the unit owner may consider making the necessary repairs to the common element and request payment from the association for the same. However, the unit owner could face action by the association if the repairs were later shown to be unwarranted. Withholding common expense payments would not likely be the best course of action by the unit owner because nonpayment of the condominium assessment may prompt the association to foreclose on the unit.”