By Jeffrey B. Smith, HindmanSanchez P.C.
Often times there is confusion as to who is responsible for the upkeep and maintenance of the association and the costs associated with damages in an association. It is easy to misunderstand what maintenance responsibilities are those of the owner, and which responsibilities are those of the association.
Pursuant to Section 307(1) of the Colorado Common Interest Ownership Act (“CCIOA”) it is the association’s responsibility to maintain common elements (including general and limited common elements) and it is owners’ duty to maintain their units in the absence of a statement to the contrary in the declaration. Additionally this same provision authorizes associations and their agents to enter units for the purpose of providing such maintenance.
If your association was created after July 1, 1992, and the governing documents are silent on the issue, Section 307(1) of CCIOA comes into the picture setting forth default maintenance obligations for both associations and owners. Specifically, Section 307(1) provides that absent a contrary requirement in the declaration, owners are responsible for the maintenance, repair, and replacement of their units and everything inside their units.
Section 307(1) also requires associations to maintain, repair, and replace common elements in a community. The definition of “common elements” in CCIOA includes both general and limited common elements. So absent a contrary requirement in the declaration, post-CCIOA associations must maintain, repair, and replace all general and limited common elements in their communities.
In the case of many condominium communities, access to certain common elements is only possible by entering a unit. In those situations, Section 307(1) requires owners to allow associations and their agents to access units if such access is “reasonably necessary” for the purpose of maintaining, repairing, or replacing common elements. Therefore, if a community was created after CCIOA and the declaration is silent concerning access to units, the association can still utilize Section 307(1) of CCIOA as legal authority for gaining access to units for the purposes stated above.
But associations should be careful as any damage caused by an association, or its agents, to a unit while maintaining, repairing, or replacing common elements accessible through such unit, will be the obligation of the association to repair. By the same token, any common element damaged by an owner while maintaining his/her unit must be repaired by such owner at his/her expense.
Owners are generally responsible for maintaining anything within the unit boundaries. However, every set of covenants includes different language and allocations. One should always review the Declaration to determine who has the maintenance responsibility for certain items within their own association. Sometimes, if an owner or an association acts negligently through the course of its maintenance obligations, such party may be responsible for damage caused outside of their maintenance responsibilities. The example below will show why it is not always easy for an owner or an association to determine who is liable for damages within an association.
Take the example of a pipe within a unit that serves only that unit (call it Unit A). This pipe freezes, breaks, leaks and causes water damage to Unit B and/or common elements. Per the declaration, the owner is responsible for the maintenance of the pipe, so the owner of Unit A bears the expense for repairing the pipe within Unit A and any damage to property within Unit A. Nevertheless, that does not mean the owner of Unit A must pay to repair or restore damaged property in Unit B and/or the common elements unless the declaration for the condominium association assigns that liability to the owner of Unit A or, absent that, unless the owner of Unit A was negligent.
The law provides that the occurrence of an accident does not raise any presumption of negligence on the part of either party. An unforeseeable failure of a pipe or connection is not sufficient to support a finding of negligence. Therefore, following the example above, the condominium association would be responsible for any repairs to common elements for which it had the maintenance obligation, and the owner of Unit B would be responsible for the repair and restoration of any property in Unit B for which that owner had a maintenance obligation, even though the damage originated from Unit A. Thus, maintenance cost tracks or follows the maintenance responsibility in the absence of negligence.
On the other hand, if there were signs or warnings of an approaching break (such as the owner of Unit A knowing the weather was going to turn cold and leaving the unit unheated), the conclusion may be different.
If there is ever a question as to who has the maintenance and repair responsibility within an association, you should contact legal counsel immediately for a thorough review of the governing documents to help prevent additional damages
Jeffrey B. Smith is an associate at the law firm of HindmanSanchez P.C. where his practice focuses on covenant enforcement and litigation matters for homeowners associations. Jeff may be reached at (303) 991-2066 or firstname.lastname@example.org.