Condo Media - November 2017 - 46

Insights from local
experts and executives

The Region
this issue:

[46] Massachusetts [48] Maine [50] New Hampshire [52] Rhode Island

MASSACHUSETTS

Manager Liability

The Traps and the Safety Nets
[by Thomas O. Moriarty, Esq., CCAL]

Given the generally litigious
society in which we live, one
could conclude that it is possible to be sued for getting out
of bed in the morning. While
that is most likely an overstatement (but that first step could be a
doozie!), it is nevertheless wise for
any commercial entity-including a condominium's managing
agent-to be aware of the most
likely sources of liability and the
best practices for avoiding, or at
least limiting, those exposures.
While this article cannot touch
upon every source of liability, it
does attempt to address the most
common sources and provide
some practical advice for how to
best avoid or limit exposures.
DEFECTIVE CONDITIONS
OF THE COMMON AREA
A managing agent is not strictly
liable for the defective condition
of the common area. However,
when a defective common area
element causes harm to persons
or property, the managing agent
is a likely target of a lawsuit for
negligence. While managers may
make recommendations and

46

CONDOMEDIA

generally provide advice about how
to keep the common areas in good
and workmanlike condition, it is
ultimately the board, in the exercise
of discretion, that determines what
will be done and when.
To avoid unwittingly signing up as
the "guarantor" of the common area,
the manager should ensure that the
scope of its responsibilities is appropriately limited in its management
contact. It is not uncommon for a
management contract to imply, or
even directly provide, that a manager
will maintain the common areas in
good and workmanlike condition
or in compliance with the building
code. If that is, in fact, a duty the
manager has knowingly accepted
and is paid to perform, then the
language is appropriate. However,
oftentimes those provisions are simply boilerplate, and included without
understanding the potential adverse
consequences. In such cases, if a
balcony railing attached in violation
of code gives way, a managing agent
may have exposed itself to liability to third parties based upon the
expansive scope of its contractual
obligations.
Safety Net: The managing agent

should ensure that the scope of its
duties is narrowly drafted so that
the contract accurately reflects the
responsibilities of the manager.
LIABILITY FOR
BOARD ACTIONS
As the managing agent for the association, the manager is responsible
to provide its client with advice and
direction on a litany of operational
issues, as may be provided in the
management contract. However,
even if the manager provides the best
advice and direction, a board, for any
number of reasons, may choose to
deviate from those recommendations. Oftentimes a unit owner or
third party will fail to distinguish
between the manager's role as advisor and the board's role as decision
maker. In those circumstances, both
the association and the manager
may be sued when such owner or
third party claims to have suffered an
injury because of a board's decision.
Safety Net: The managing agent
should ensure that its contract pro-
Condo Media - November 2017

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