Condo Docs Determine Who Fixes Things:

							Condo Docs Determine Who Fixes Things:
By Benny L. Kass
Saturday, March 22, 2008; F02

Q: I bought a condominium 10 months ago, and the edges of the skylight have started to
leak. Our management company had its maintenance people look at it. They said that I
need to replace it and that the cost would be mine. I disagreed, and they asked their
lawyer for an interpretation. The lawyer responded that I was responsible. But I know
that he did not have all the documents when he offered that opinion because he could not
provide me with a copy of the floor plans. What should I do?

A: First, your condo association's lawyer, not the lawyer for the management company,
should be providing the legal interpretation of your condominium documents. You may
also want to retain your own counsel, rather than rely on lawyers who do not represent
you.

The answer to your question about the skylight repair will be found in the legal
documents of your condominium association. Those legal documents are the declaration,
the bylaws, and the plats and plans.

The declaration is the legal document that declares your building to be a condominium. It
is recorded among the local land records.

In a condominium, there are three basic components:

 Units: The apartments.
 Common elements: Shared features like the roof, elevators and entrance lobby.
 Limited common elements: Common elements such as a balcony or a deck that not
everyone in the complex can use or has access to.

You need to determine whether the skylight is part of your unit or is a common element
or limited common element.

The declaration will define each of these components. In general, the common elements
include the land; foundation; slabs; perimeter walls; pipes (except water and sewage
pipes serving a particular unit); water mains; electrical wiring (except the wiring serving
a unit); conduits; public utility lines; steps; and exterior lighting devices of common use
or necessary to the existence, upkeep, use and safety of the building.

Units are also specifically defined. Here's an example from a real condominium: "Each
Condominium Unit includes the horizontal space between the Unit side of the exterior
walls of the building and the finished walls separating the Unit from corridors, stairs and
where applicable to the surface of the finished walls of those interior walls which
separate one Unit from another Unit. Each Condominium Unit also includes the vertical
space measured from the (topside) surface of the subflooring to the finished (exposed)
surface of the ceiling of such Unit."

It sounds legalistic, but if you read it carefully, you will see that the unit includes
everything from wall to wall and floor to ceiling.

Many documents will specify other items in the units, such as the mechanical equipment,
or that which serves your unit, such as a heat pump.

You say that you do not have the floor plans, technically called "plats and plans." This
document, filed with the local government surveyor's office, will usually depict the three
components, although often not everything is identified. It may be that the skylight is
labeled and that you are correct in demanding that this document be reviewed before a
legal opinion can be rendered.

Why is it important to determine whether your skylight is a general or limited common
element or part of a unit? Because unless your governing documents state otherwise, the
owner of the unit is generally responsible for the maintenance, repair or replacement of
the unit, while the condominium association is responsible for general and limited
common elements.

While all of this research is proceeding, do not sit still. The leak will continue until the
problem is resolved. Whether you or the association pays for the repair is -- for the
moment -- irrelevant. One of you should hire a licensed roofing contractor and have the
leak fixed.

There is yet another aspect to your problem, namely insurance. You or your lawyer
should review your legal documents, as well as the condominium law in your
jurisdiction. In condominiums, there are two types of insurance coverage involved with
problems like yours: the master insurance policy and your unit owner's policy.

The master policy is issued in the name of the association and is paid for by the
association. Often, even if the association is not responsible for the damage, the master
policy may cover some or all of the repairs. For example, in the District, the
Condominium Act states: "If at the time of loss under the policy, there is other insurance
in the name of a unit owner that covers the same risk covered by the [association's]
policy, the . . . association's policy shall provide primary insurance." You should have
your own insurance. You and the association should both file claims with your carriers
and let them fight out over who is responsible for paying. Usually, these policies require
that the insurance company be advised of the problem within 30 days from the day it is
discovered.

My advice: Get the problem fixed immediately, even if you have to pay. If you do this,
take before and after pictures and keep all receipts. Then see whether there is insurance
coverage. The legal interpretation as to who owns the skylight is important but should not
hold up stopping a leak