When Board’s Casual Conversations Conflict with
Declaration
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...
A: No, according to a recent similar Illinois case,
where there was a controversy over whether the
association of a condo ...
Informal Conversations About Repairs
Vendome Real Estate Media
www.communityassociationinsider.com
In that case, a unit ow...
Differing Interpretations of Definition
Vendome Real Estate Media
www.communityassociationinsider.com
The owner asserted t...
Differing Interpretations of Definition
Vendome Real Estate Media
www.communityassociationinsider.com
However, the owner c...
Differing Interpretations of Definition
Vendome Real Estate Media
www.communityassociationinsider.com
A trial court ruled ...
Declaration Is Determining Factor
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www.communityassociationinsider.com
A contractor may bill you ...
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When Board’s Casual Conversations Conflict with Declaration

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Q: I live in a small condo co-op. When I've seen board members in the building, we've discussed that portions of the balcony outside my unit need to be either repaired or replaced. They've agreed that the association should be responsible for the cost of this and similar repairs to other units in the building. But when I formally asked the association to pay for the repairs, it said that it's my responsibility under the declaration and bylaws. If I decide to sue the association for the cost of making the repairs, can I rely on the oral promises made by the board members? The answer is….

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When Board’s Casual Conversations Conflict with Declaration

  1. 1. When Board’s Casual Conversations Conflict with Declaration Vendome Real Estate Media www.communityassociationinsider.com Q: I live in a small condo co-op. When I've seen board members in the building, we've discussed that portions of the balcony outside my unit need to be either repaired or replaced. They've agreed that the association should be responsible for the cost of this and similar repairs to other units in the building. But when I formally asked the association to pay for the repairs, it said that it's my responsibility under the declaration and bylaws. If I decide to sue the association for the cost of making the repairs, can I rely on the oral promises made by the board members? The answer is….
  2. 2. A: No, according to a recent similar Illinois case, where there was a controversy over whether the association of a condo building was responsible for paying for upgrades to deteriorating windows in an owner's unit. Vendome Real Estate Media www.communityassociationinsider.com
  3. 3. Informal Conversations About Repairs Vendome Real Estate Media www.communityassociationinsider.com In that case, a unit owner in an eight-unit condominium in Chicago expressed a number of concerns about the way the association was being operated, including problems with the internal and external structure of the units that needed to be addressed, such as windows and balconies and a lack of maintenance in the common areas. Specifically, the owner wanted the association to pay for the cost of replacing the bay window in her unit. In response, the board considered adopting a policy in which the association would pay for bay windows while the unit owners would remain responsible for all other windows. In the meantime, during casual conversations with the owner when they stopped to talk in the building, board members repeatedly promised that her window frame would be repaired. But before making a final decision, the board consulted with its attorneys, who informed them that the declaration required all unit owners to “maintain, repair, and replace all of the windows” in their units. The board informed the owner that she would have to pay for the replacement of her bay window. The owner didn't accept the board's decision that she was responsible for maintaining, repairing, and replacing her own windows pursuant to the declaration. She sued the association.
  4. 4. Differing Interpretations of Definition Vendome Real Estate Media www.communityassociationinsider.com The owner asserted that the association had avoided responsibility for maintaining common elements and for repairing or replacing a deteriorating frame in her unit's front bay window, even after a “long history of discussion with regard to these elements and assurances from both the current and prior board members, by excluding these items from the building's definition of what constitutes a ‘common element.’” The association said that it based its determination on the declaration, which provided that the duties of the board included paying for “maintenance, decorating, repair, and replacement of the common elements but not including the windows and glass doors appurtenant to the unit, if any, which the unit owners shall maintain and repair, except if necessitated by repairs to the common elements.”
  5. 5. Differing Interpretations of Definition Vendome Real Estate Media www.communityassociationinsider.com However, the owner claimed that the declaration didn't exclude the association's responsibility to maintain the window frames, as opposed to the windows themselves, and that the problem with her bay window arose from structural defects in the building itself and not from the windows that she was responsible for maintaining. The owner argued that, moreover, the board has paid for correcting such problems in the past when they occurred in the units of board members and that the association had assessed all of the unit owners previously in order to pay for repairs to balconies. She also claimed that promises repeatedly made by the board members that the window frame would be repaired should be considered to have been on behalf of the board and association.
  6. 6. Differing Interpretations of Definition Vendome Real Estate Media www.communityassociationinsider.com A trial court ruled in favor of the association. It noted that: (1) the association's bylaws stated that the windows and interior surfaces of the units are to be maintained, repaired, and replaced by the unit owners; (2) the declaration provides that in the event of any question of interpretation or application of the declaration or bylaws, the determination of the board shall be final and binding; and (3) the declaration provides that the members of the board aren't liable to the unit owners for “any mistake of judgment or any acts or omissions made in good faith”—including making oral promises in casual conversations like the ones in this case. The court noted that the board members had told the owner that the association would pay to replace her bay window, but that the assurances were given prior to the board consulting with its lawyer, who advised it that the windows were the unit owners', not the association's, responsibility. The court pointed out that the board was free to rely upon legal advice when making decisions. The owner appealed.
  7. 7. Declaration Is Determining Factor Vendome Real Estate Media www.communityassociationinsider.com A contractor may bill you for more expensive brand-name parts but actually use generic or used parts. Make sure your contract specifies what kinds of parts the contractor will use. Ask the contractor for a copy of the invoice for the product that identifies the product’s brand name, unless the product’s brand name is clearly visible on the product itself.
  8. 8. Get Your FREE Issue Today! Vendome Real Estate Media www.communityassociationinsider.com Keep Your Co-op, Condo, or Homeowner’s Association Running Effectively and Within Budget! Your Subscription Includes: • 12 issues emailed in PDF format and available online • Monthly eAlerts with the latest association news and trends • Online access to over 5 years of archived content

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