When Board’s Casual Conversations Conflict with Declaration

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….

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.

Informal Conversations About Repairs
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.

Differing Interpretations of Definition
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.”

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.

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.

Declaration Is Determining Factor
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.

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When Board’s Casual Conversations Conflict with Declaration

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