Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: I just read your column regarding the removal of owner-installed tiles on limited common element balconies. I have a follow-up question which I hope you can answer. During a balcony concrete restoration, corroded rebar from the balcony extended into a unit under the sliding glass doors. In order to reconstruct the balcony, about a foot of flooring inside the unit had to be removed. Who pays for the interior flooring repair?
Our 1970’s documents are silent on this question. These are SIRS mandated reconstruction projects. Any experience with this set of facts? Signed, P.P.
Dear P.P.,
This is another common situation (though not quite as common as with balconies). The key question is whether the declaration of condominium has an “incidental damage” provision. Look at the sections of the declaration regarding the relative maintenance responsibilities of owners and the association. Many declarations have language stating that the association is responsible for incidental damage caused to a unit by the association when performing maintenance of the common elements. If so, arbitrators have held that the association is responsible to repair such damage, at least to some extent (at the very least, I would expect the association to be responsible to match replacement flooring as closely as commercially possible; and there’s a small chance an arbitrator or court could require the association to replace the flooring in that entire room if no match were possible).
Now, I often see unit owners in this situation demand that a condominium replace the flooring throughout their entire unit (when the whole unit has matching flooring). I think a demand like that goes too far, and I would not expect an arbitrator or court to grant that kind of relief.
If the declaration does not obligate the association to be responsible for such incidental damage, then it would be up to the unit owner to replace their own flooring, and this is just one unfortunate part of owning a condominium (although, it would be no different than having to replace the flooring in your own private home in the event of damage to the foundation, for example).
Question: In our large retirement community, many of us who are less mobile often walk across a very wide grassy area as a shortcut to reach other areas of the community, rather than take the paved longer route around. I recently inquired if the condominium whose grass we are crossing would consider installing a paved walkway. The residents of that condominium support it, so long as they don’t have liability if someone trips and falls. They also don’t want the expenses of laying a concrete pathway.
Who would be responsible for installing this pathway, and what can we do to limit their liability? Signed, B.Z.
Dear B.Z.,
It sounds as if this grassy area is a common element of a specific condominium, and you and others are effectively trespassing across that area (albeit in a friendly, acceptable way). The condominium would be responsible for installing the walkway, but if you and other neighbors want to cut a deal with them to pay for the walkway, you would certainly be entitled to do so. It’s as simple as putting together a deal, offering it to them, and seeing if they accept.
They might be willing to then maintain it going forward; or if the deal is with the neighboring condominiums, they could enter a contract requiring those condominiums to pay for maintenance in the future, as well.
Liability is a trickier issue.
There is no sign that will magically shield them from all liability. The reality is that they already have liability, just because you’re walking across their lawn, in that the landowner always gets sued when there’s an injury, whether there’s true legal responsibility or not. That’s why condominiums carry liability insurance. They could certainly premise a deal on the neighbor condominiums chipping in for some increased liability insurance, and the inevitable future cost increases. And of course they can put up “at your own risk” signs, but the reality is that if they know of a dangerous condition and ignore it, the sign is not going to shield them.
I always advise my clients not to get too fixated on avoiding every shred of theoretical liability, as it’s not a realistic goal — carry good insurance, make reasonable decisions and properly maintain the property, and accept that liability, in general, is an essential risk of any landowner.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: When condo balcony repair leads to interior damage who pays for that?
Reporting by Ryan Poliakoff, Special to the Palm Beach Daily News / Palm Beach Post
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