Q&A: Who Pays for In-Unit Mold Remediation?

Q My Massachusetts condo association commissioned an environmental report to determine the cause of mold in my closet. It pointedto poorly-caulked exterior, lack of waterproofing, and general poor maintenance of the common area. They quickly called for a contractor to determine the cost of the work. However, the price was costly and now they maintain that because it is in my unit, I, not the association, am responsible. They claimed they didn’t have insurance but in fact they do. What do I do to correct the issue? It has been well over a year with almost monthly follow up to see if they would reconsider and do something. I have a lawyer but it is moving slowly.

— Disgruntled Owner

A Under c.183A of the Massachusetts General Laws, the trustees of the condominium association are legally liable for the condition of any of the common areas of the condominium. Based upon your description of the environmental report’s determination that the mold that was found in your closet was caused by exterior common area maintenance conditions, it is the trustees’ responsibilityto cure, fix or repair the exterior condition which is causing the entry of the water which is causing the mold.

Until this exterior condition is repaired and the water intrusion is remedied, any remedy to the interior of the unit would be futile. To the extent that the failure to repair or maintain the exterior of the building which is common area, can be said to have been the cause of the water or moisture intrusion which caused the mold, the trustees would be liable for the damage to your property (interior finishes and other damaged items) which the trustees’ negligent failure to repair caused. If the water or moisture entered as a part of some catastrophic event (i.e., a tree landing on building) then the trustees would have insurance coverage under the Master Insurance Policy to pay for the repairs to the exterior damage and perhaps even the interior damage to your unit, depending on the insurance policy language.

Because the water or moisture intrusion results from a failure to maintain the common areas, then there will likely not be insurance coverage for the exterior repairs and the cost of the building repair will fall on the condominium association as maintenance to a common area. In order to secure a fix in this situation, you will need to make demands upon the trustees to comply with their legal obligation to maintain the building.

If they continue to refuse to do so, you have two options: You can vote them out and vote in a board which is committed to make the repairs and properly maintain the common areas, or you can file suit (arbitration, if required by your condominium documents) on behalf of the unit owners for breach of fiduciary duty whichresults from the trustees’ violation of their statutory duty to maintain the common areas.

The first option is more cost-effective. If there are other sympathetic unit owners who are concerned about the property value being preserved and the exposure of the condominium association to personal injury damage claims which may result from this and other neglected common area maintenance issues, you may be more successful. The second option is available at all times provided the proper proceduresare followed, but is always more costly. The good news is if you sue on behalf of the association and win, you may be able to have the association reimburse you your attorney’s fees.

Related Articles

Staff Safety 101

Staff Safety 101

Protecting Employees in Your Building