Do Something!

Do Something!


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By Alexander Levine, Esq.

Do Something!

 

Brower v. Burns

“Do something!!!” are words frequently heard by the Board or management when a unit owner complains about a leak coming into his or her unit from another unit. But what duty does a Board really have when a problem arises with a unit Owner’s failure to maintain elements within his own unit? Superior Court Justice William C. Barrett addressed this issue recently in his opinion in Brower v. Burns, et al., on a Condominium Association’s Motion for Summary Judgment. Among the questions presented to the Court was what duty, if any, does a Board of Trustees of the Condominium Association have to maintain or repair elements within a unit that the Unit Owner has the responsibility to maintain, but is not maintaining. In Brower, Justice Barrett held the Board had no duty to affirmatively repair, or require a Unit Owner to repair, defective elements within the Unit that the Unit Owner has the responsibility to maintain.

Do Something!The Brower case involved a not uncommon dispute between two Unit Owners over a water leak. The Unit owned by the Plaintiff – Brower – was directly underneath the Unit owned by the Defendant – Burns. The alleged leaks spanned a course of close to seven years before the filing of the lawsuit. Brower sued Burns and the Board of Trustees of the Condominium Association. The gist of the complaint against the Board was that the Board was negligent in upholding its duty to require the Unit Owner with the leak to permanently correct the leak. The Board asserted in its Summary Judgment Motion that it had no such duty to require a Unit Owner to maintain their Unit. The Court agreed.

The analysis centered on the section of the condominium documents that discusses and is titled “Maintenance and Repair of Units.” The section stated that a Unit Owner has a duty to maintain their Unit and the utility fixtures within and serving the Unit. The section further provided that the Board had the right to require a Unit Owner to maintain their Unit, including the utility fixtures within each Unit, when a hazardous condition exists and the Unit Owner has failed to make the repairs on his or her own.

Justice Barrett analyzed this part of the condominium documents that granted the Board the right to require the Unit Owner to correct the defective condition, and concluded that while the Board had the right, it did not have the duty to force Burns to correct the leak. The Court stated: “Section 5.2 gives the Board the right to force a unit owner to correct a hazardous condition in the interior of his/her unit or to enter and fix the hazard itself at the unit owner’s expense, but it does not require that the Board do so.” The Court further stated the “Board is not responsible for the repair and maintenance of individual privately owned units within the Condominium; it is responsible for the care and upkeep of the Condominium’s common areas.”

Therefore, the Court concluded that while the Board could have acted, it had no duty to force Burns to fix the leak. Therefore, the Board had no duty to Brower that was somehow breached by the Board’s inaction. As such, Brower’s negligence claim against the Board failed, and was dismissed on Summary Judgment.

A copy of the Brower v. Burns, et al., MICV2015-06084 Summary Judgment Decision can be found here. For more information on this or any other related issue, contact Attorney Alex W. Levine at levine@goshlaw.com.