Q–I live in a vintage condominium of 100 units that was converted 20 years ago. During this period, a number of units have been upgraded. Unfortunately, our building is now facing a situation where poor workmanship from these earlier renovations is starting to show.
There is an extensive plumbing problem in the building which will require the board to make common element repairs. Pipe leaks have caused extensive water infiltration to certain units.
The repair work will require the removal of kitchen appliances and fixtures to repair damaged pipes.
Our declaration provides that the board is responsible for repairs to the common elements and owners are responsible for repairs to the units. An exception in the declaration is the statement that redecorating to units caused by common element repairs is paid by the association.
The board has proposed a plan for the pipe repairs, but many owners have rejected this concept. The attorney for one of the unit owners insists that the board agree to a list of demands before allowing access to his client’s unit.
He wants licensed contractors doing the work and has demanded that the association pay for the cost of removal and reinstallation of unit furnishings and fixtures. He also wants assurances that the unit will be restored to the same condition it was in before these plumbing leaks; that the owners approve the contractors used by the board; and in some cases that replacement materials used in the units consist of a particular material not currently in the unit.
As a board, we are struggling with this project and have the following questions:
What is the association’s obligation for redecorating of units?
Does it include the cost to disconnect and reconnect appliances and built-in cabinets?
Can the owner exercise a right of first refusal over the association’s selection of a contractor?
Can the board amend the declaration to revise or remove this language that is being cited by the owners attorney? Is there a way to bring this controversy to arbitration rather than expensive, but non-productive, legal procedures?
A–Counsel for the unit owner has his authority reversed. The board, not the owners, dictates common element repairs.
The clause in the declaration means that the board is only responsible for damages to a unit caused by the repair work. The board is not responsible for damage to unit decorating caused by common element deficiencies.
Owners should have insurance to cover this particular risk.
Under Section 18.4 of the Illinois Condominium Property Act, a condominium board has the right of access to each unit for maintenance, repair or replacement of the common elements located either within the unit or accessible from the unit.
There is no obligation under the statute for the association or the board to pay for the cost of removing or reinstalling appliances. At its discretion, the board may include this cost as part of the common element repairs which, in turn, will be paid by the owners.
The clause referenced in your declaration is a problem, but limited in scope. The association is obligated to pay for damage to units caused by the repair process. Redecorating means repair to existing materials in the unit. The term does not include the cost of disconnecting or reinstalling appliances.
To protect the owners, the board will hire licensed contractors who can provide insurance of sufficient amounts and coverage acceptable to the board. With an extensive project like you describe, however, the board may adopt a rule to limit the redecorating reimbursement from damage repairs not covered by insurance.
The owners don’t have a right of first refusal over the board’s selection of the contractor. The statute gives the directors sole control over the scope of common element repairs. However, the owners, and not the board, have the right to amend the declaration to delete the redecorating clause that is the source of the board’s concern.
Don’t expect the owners to accept the amendment unless the board convinces them that the cost to fix unit decorating will be an excessive common expense for the entire association.
The board and unit owners can submit damage claims under the redecorating clause to arbitration. However, there is really nothing to arbitrate. Damage from the common element repair project will be settled and paid by the contractor or its insurer.
The owners don’t have a right to arbitrate the scope of authority given to the board under the Condominium Act and the declaration.
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Mark Pearlstein is a Chicago lawyer who specializes in condominium law. Write to him c/o Condominiums, Real Estate Section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, he can’t make personal replies.
