By Robert Nislick
It is widely known that management and control of the common areas of a condominium is vested in the organization of unit owners, which acts by and through its trustees. See McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 578 (1995). The term “organization of unit owners” refers to the “corporation, trust or association owned by the unit owners and used by them to manage and regulate the condominium. See Berish v. Bornstein, 437 Mass. 252, 254 n.5 (2002); G. L. c. 183A, § 1.
Condominium trustees do their job well when they are actively attuned to ongoing maintenance and repair needs in the common areas. Additionally, trustees should anticipate future common area maintenance and replacement needs. It is apparent that under the Condominium Act, and under a condominium’s governing documents, the board of trustees is responsible for maintaining and repairing the common areas.
“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (a) The method of providing for the necessary work of maintenance, repair and replacement of the common areas and facilities . . . .” G. L. c. 183A, § 11 (a). “The necessary work of maintenance, repair and replacement of the common areas and facilities shall be carried out as provided in the by-laws. G. L. c. 183A, § 5 (e). “The organization of unit owners shall designate a person or entity who shall oversee the maintenance and repair of the common areas of the condominium.” G. L. c. 183A, § 10 (k).
Most of the time, condominium boards and the property managers they retain do a great job in caring for the condominium. Unfortunately, however, this is not always the case. Whether through shortsightedness, limited resources, hiring bad contractors, or a lack of responsiveness, defects that may occur in common areas sometimes go unaddressed or are inadequately taken care of for too long.
A board’s inattentiveness can cause even greater problems. For example, in one case, leaks developed in a common roof just above a unit owner’s ceiling. The leak led to ceiling cracks and loosening plaster in the plaintiff’s unit, and she requested that repairs be made. Any repairs made were either untimely or inappropriate. The threshold of the door leading from the unit owner’s unit to her deck began rotting and mushrooms started growing. The board and its contractors failed to complete a repair of the problem. Later, hazardous mold in unsafe levels was found in the unit, caused by water infiltration and chronic dampness. The unit owner’s doctor ordered her to vacate due to the presence of mold. The unit owner continued to request repairs of the leaks and chronic dampness, as well as a full remediation of the mold, but no further action had been taken.
After dealing with these problems for around five years, the owner eventually filed suit. Although the Superior Court ruled that the statute of limitations had run, the Appeals Court found that the plaintiff stated claims against the condominium trust for negligence, nuisance, and trespass, and remanded the case to the Superior Court for further proceedings.
No unit owner should have to deal with these problems for such an extended period of time. Unfortunately, if a board refuses to take care of a problem, and it gets to the point where the owner files suit, several more years of expensive and uncertain litigation for both sides may pass, and the unit owner may still see no relief.
If this had been a tenant versus landlord situation, as opposed to a condominium unit owner versus condominium trustees situation, common knowledge suggests that the tenant would have contacted the local board of health to complain that they were living in uninhabitable premises in violation of the State Sanitary Code.
A local board of health, such as Boston Inspectional Services Department, could inspect the common areas of the building and the dwelling unit itself, and issue a correction order to the owner. See 105 Code Mass. Regs. 410.830. The board of health can order that certain problems, depending on their severity, be substantially corrected within 24 hours or up to a period not exceeding 30 days. See 105 Code Mass. Regs. 410.830. One purpose of the State Sanitary Code is to “facilitate the use of legal remedies available to occupants of substandard housing, to assist boards of health in their enforcement of this code and to provide a method of notifying interested parties of violations of conditions which require immediate attention.” See 105 Code Mass. Regs. 400.001.
Moreover, “nothing prevents the courts from using the possibility of criminal sanctions as a means to seek compliance with the Sanitary Code.” Inspectional Services Department v. Hernandez, Boston Housing Court No. 04-CR-00724 (Nasif, J.) (Nov. 1, 2005).
Can a condominium unit owner avail him or herself of the same remedies to enforce the State Sanitary Code that are widely available to a tenant who resides in premises which do not conform with standards of fitness for human habitation? While this may come as a surprise, the answer is yes.
“The remedies set forth herein shall be available to condominium unit owners and tenants in condominium units. Whenever used in this section, the term ‘petitioner’ shall include a condominium unit owner or tenant, the term ‘owner’ shall include a condominium association, . . . and the term “rents” shall include condominium fees.” G. L. c. 111, § 127I, eighth par.
Under the State Sanitary Code: “Dwelling unit shall also mean a condominium unit.” 105 Code Mass. Regs. 410.020. “Owner means every person who alone or severally with others: . . . (2) has care, charge or control of any dwelling, dwelling unit, . . . or parcel of land, vacant or otherwise . . . ; or (5) is an officer or trustee of the association of unit owners of a condominium. Each such person is bound to comply with the provisions of these minimum standards as if he were the owner.” 105 Code Mass. Regs. 410.020. “(D) Common Areas. In any dwelling, the owner shall be responsible for maintaining in a clean and sanitary condition free of garbage, rubbish, other filth or causes of sickness that part of the dwelling which is used in common by the occupants and which is not occupied or controlled by one occupant exclusively.” 105 Code Mass. Regs. 410.602.
Additionally, condominium property managers should also recognize their responsibility for complying with the State Sanitary Code. In one case, the Housing Court found that a property manager for a condominium which had substantial violations affecting the common areas was personally responsible for Code compliance. The Court stated:
“[T]he contemporary statutory and regulatory scheme leaves it crystal clear that property managers . . . are responsible for Code compliance in their own right, regardless of [an] agency analysis. This principle is so well understood in housing law that in thousands upon thousands of cases handled by the undersigned judge over twenty years, I have never had it argued to me that a property manager does not bear this responsibility because he is the agent for the owner (or in this case, the Trust) rather than the owner himself.” Concerned Citizens for Springfield, Inc. v. Orgel, Western Housing Court No. 06-CV-0318, slip op. at 4 (Abrashkin, J.) (Dec. 6, 2007).
Accordingly, and consistent with the purpose of the State Sanitary Code, condominium trustees and property managers should fulfill their role with a view towards protecting the health, safety and well-being of the occupants of housing.
About the author: Robert Nislick is a Massachusetts real estate attorney who represents condominium associations and unit owners. Contact him today for more information.