Q. I am the owner of an apartment unit in an eight-unit condo. The board of trustees consists of all eight unit owners, of which there are four officers seated on the board. My condo unit happens to be on the top floor, and over the past few years I have sustained over a dozen water leaks due to a faulty roof, which I attributed to damaged flashing. In the past, the board repaired and installed new flashing to prevent leaks but now it appears that there is serious buckling issue and a large portion of the roof seems to need replacing. The association lacks funds to repair it and the other owners are reluctant to vote for an assessment. It seems the board is making this my own personal issue. What legal recourse do I have? Is the board responsible? The bylaws say that the building must be kept in first-class condition, but no mention is made of who should pay for internal damages to my unit due to their negligence.
—Water-Logged in Westfield
A. “Section 3-107 of the UCIOA Act,” says shareholder/director John A. Facey III of the Rutland, Vermont-based firm Kenlan, Schwiebert, Facey & Goss, PC, “assuming you are in a UCIOA jurisdiction, entitled “Upkeep of Common Interest Community” provides that the association shall be responsible for maintenance, repair and replacement of the common elements.
“While the language is mandatory, the devil, of course, is in the details. The association could take the position that each time they effect a band-aid approach to the problem, that their intention was to effect a final solution. I recommend that you arm yourself with a building inspection done by a professional engineer (PE) who would, presumably, conclude after inspecting the roof that more than a band-aid repair must be done to prevent continuing damage to your unit.
“Getting a PE involved would have the added benefit that you could as the PE to conclude, in writing, that the water damage that you have incurred is directly resulting from the failure to maintain the common element involved, namely the roof.
“I would then present the PE report along with a carefully-drafted letter demanding that your board either perform the work identified by your PE within a reasonable amount of time or else you will be hiring an attorney and going to the appropriate civil court seeking declaratory and injunctive relief, reimbursement of your expenses including the professional engineers expense and your attorney’s fees. Hopefully they will see that you mean business before you are required to hire an attorney.
“Finally, you may not withhold payment of your condominium fees in an attempt to force attention on your issue. You may, of course, pay them under protest.”