Condo Media - September 2012 - 40

COVER STORY
than what is granted specifically in the documents — to dictate what owners do or don’t do in their units. But most documents require the board to preserve and enhance property values and to ensure that the community is properly insured. And condominium attorneys generally agree that these provisions give associations the authority they need to impose at least some maintenance obligations on owners. Using that authority, some associations have implemented inspection programs to identify maintenance problems inside units and ensure that they are addressed. In communities where the association pays a common water bill, boards also have the authority to mandate water conservation, and some use that authority specifically to inspect shower heads, toilets and sinks for leaks and efficiency. “It’s a quick and easy way [to spot leaks] and to control water consumption,” Abel says. And most owners, he has found, appreciate the review. Insurance coverage and premium rates — both potentially threatened by repeated water damage claims — also justify the inspection, which, Abel notes, targets washing machine and dishwasher hoses, as well as water heaters. The association requires owners to use no-burst metal braided hoses, replace those that show signs of wear and replace water heaters every seven years — the average life expectancy for most brands. The key to owner acceptance of these requirements, Abel says, is “communication,” explaining the need for inspections and the benefits of a mandatory maintenance program. to complete the work. If owners don’t make necessary repairs, the association will have the work done and bill them for the cost. But he emphasizes, “We always recommend that boards consult their attorney before implementing these procedures, to ensure that they are abiding by the condominium documents and acting within their power.” Some industry executives warn that inspection and repair programs such as these create potential liability for associations, which could be vulnerable if the inspection fails to identify or correct a problem. But Shaffer thinks the “prudent man” rule applies. “As long as boards rely on their attorney’s guidance,” he suggests, “they can do what a prudent person would do, [that is within the board’s power to do] to prevent damage to a multi-million-dollar asset.” Few dispute that association boards have the authority and the obligation to mandate and enforce maintenance requirements where the safety of owners is involved. But when it comes to general maintenance requirements unrelated to health and safety risks, opinions are less uniform. Maintenance of a washing machine hose “is clearly the owner’s responsibility,” Shapiro says. “If the hose breaks, the owner is responsible for damage to other units or common areas. That’s not the board’s problem.” The issue, she notes, is property damage and “That’s an insurance issue; money will take care of it.” The owner’s failure to clean a dryer vent, on the other hand could cause a fire, which, Shapiro notes, “might kill someone. No amount of money could compensate for that.” cies,” he notes. “But it’s another to monitor [expirations and renewals] and somewhat dangerous for the board to get involved” at that level. With hundreds of policies renewing on different dates, monitoring for compliance would create “an administrative nightmare,” Marcus says, along with a significant liability risk for the association should the monitoring fail to detect that an owner’s policy has lapsed. “Other owners may sue the association,” he notes, if that owner is unable to pay his/her share of a deductible or an uncovered loss. For that reason, he advises boards to be cautious about assuming obligations they don’t have, to avoid incurring “liability they don’t want.” Marcus views maintenance resolutions more favorably — useful, he suggests, because they highlight or clarify obligations that may not be stated clearly or referenced at all in the association’s governing documents.

Sending a Message
“Resolutions send a message to owners, putting them on notice that they are responsible for any damage that results if they fail to comply,” he explains. But maintenance resolutions don’t typically incorporate enforcement mechanisms, Marcus emphasizes, nor do they imply proactive enforcement actions by boards. “They provide a basis for holding owners accountable after the fact.” In legal terms, Shapiro says, there isn’t much to distinguish a maintenance resolution from a rule. A resolution, she suggests, “is just a fancy name for a rule.” But some managers do see a distinction in the way resolutions are written and how they are used. Garrett thinks resolutions are indicated when boards are “setting a precedent.” Jones similarly thinks boards should use resolutions “to establish a broad policy.” The way resolutions are written — formally “like a geometry theorem,” she suggests — underscores their importance, and seems to give them more weight rhetorically, if not legally, than more simply stated rules.

A Gray Area
Mandating owner compliance “can get a little gray,” acknowledges Shaffer, whose firm also recommends inspection programs for association clients. “We take the position that the association has a responsibility to protect the building as a whole.” If the inspection reveals maintenance issues, the manager informs the owner of the work needed and gives them a specified time (usually 30 days)

A Dangerous Policy
Marcus draws similar lines. While he advises associations to state owners’ responsibilities clearly — in revised trusts or in maintenance and insurance resolutions — he doesn’t advise them to undertake monitoring or inspection programs to ensure compliance. “It’s one thing to require owners to have individual (HOA) insurance poli-

CONDO MEDIA • SEPTEMBER 2012

Condo Media - September 2012

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