Publications

Association Responsibility for Maintenance of the Common Elements

Published August 2, 2003 as
Rights, responsibilities of condominium boards change with time

Since the inception of condominiums in Illinois in 1963, it has been a basic principle that the unit owners are responsible for the interior and contents of their units while the association was responsible for maintaining the common elements.

Subject to the Illinois Condominium Property Act (765 ILCS §605 et al), each condominium board was permitted a certain degree of latitude in resolving maintenance issues based upon the specific wording of their declaration and bylaws. Some areas of maintenance that were clear have been made a little “fuzzy” because of frequent changes to the wording of the statute.

For example, in the ‘70s and early ‘80s, it was always assumed that the association was responsible for drywall. The boundaries of a unit were defined as the four dimensions enclosing height, width, breadth and depth of the unit (air space), the drywall being considered common elements. Since the drywall on the exterior walls of the unit defined the unit boundaries, everything from the paint-in was unit; everything from the drywall-out was association. Pipes, wires and conduits were simple. If it serviced more than one unit, no matter if it was inside a unit, it was still common elements. Conversely, if it serviced only one unit and it was outside the walls, it was the unit owner’s responsibility. The statutory language was consistent and declarations mirrored the language of the statute.

All of this began to change in the early ‘80s with substantive changes to the Condominium Act and as new standard provisions began appearing in the new declarations. Section 4.1 of the Act defines common and limited common elements. It has been amended several times. The statute establishes maintenance responsibility for units and common elements. It distinguishes limited common elements. Currently it defines the differences between the two, however, it does say “(a) Except to the extent otherwise provided by the declaration or other condominium instruments…”

What this means in effect is that no matter what the succeeding sections state, they can be contradicted by an association’s declaration. A specific example would be Section 4.1(a)(3) which says: “if any chutes, flues, ducts, conduits, wires, bearing walls, bearing columns, or any other apparatus lies partially within and partially outside of the designated boundaries of a unit, any portions thereof serving only that unit shall be deemed a part of that unit, while any portions thereof serving more than one unit or any portion of the common elements shall be deemed a part of the common elements.”

That seems pretty clear and consistent with conventional thinking going all the way back to the ‘60s. However, because of the preamble to this section allowing for exceptions, this can be contradicted by the draftsman of a declaration.

A specific example of how this can happen – I represented an association where the tenant moved out, did not pay the utility bills, the heat was off and a water pipe froze and burst, flooding and damaging the interior of that unit and several others. It was a pipe that served only that unit. Easy, right? Not exactly! The declaration specifically stated that once the pipe extended beyond the boundary of the drywall it became the association’s responsibility. Thus the broken pipe, even though it was caused by owner negligence, was still categorized as a common element. Further, the declaration went on to state that damages to the interior of a unit, caused by a defect in the common elements, was the association’s responsibility. This goes beyond the scope of all conventional thinking; however, the statute governs even by creating this exception.

The basic rule should be “whoever it services or controls it, maintains it.” The reality is that in every instance where a dispute arises over unit owner versus association responsibility, even though the Condominium Act should be consulted, the declaration in all instances is controlling.

The rule then, for simplicity of interpretation, is that if a pipe services a single unit exclusively, it is the maintenance responsibility of that owner. The exception is, unless it says otherwise in the declaration. Therefore, there is no absolute rule in place without consulting the declaration for each association and then establishing a policy to put in the rules.

Next, is the issue of determining the maintenance responsibility for limited common elements. Section 4.1 of the Act defines them; the most common being balconies and patios. Section 9(e) of the Act states that repairs and maintenance of limited common elements can be charged back to the owner, if it is provided for in the condominium instruments. Again, we must look to the declaration for guidance before we can solely rely upon statutory authority. Declarations run the gamut from describing all of the limited common elements in detail to a very obscure reference. Since the cost of maintaining limited common elements can be frequently charged back, this requires a careful analysis on a case-by-case basis.

The other area of concern is when it goes beyond routine maintenance and a loss becomes a claim large enough to warrant an insurance claim. Under those circumstances there are some basic rules:

Additions and improvements are not covered by the association under any circumstances unless the owner requests the association to obtain such coverage for them at the owner's expense.
One unit owner is prohibited from suing another unit owner for damages incurred to the interior of their unit. That is why they have unit owner's insurance (or should have, but that is another discussion).
Limited common elements are covered by the association's insurance.

In June 2002, Section 12 of the Condominium Act governing insurance was completely rewritten. The intent of the statutory amendments was to simplify claims practices and disputes. It will take several years of claims experience under the new rules before this can happen.

Frequently in the past, when one owner caused damage to another unit and the common elements, there was always a battle over primary insurance coverage. Since 2002, the Condominium Act was changed to provide that all claims go through the association’s insurance policy and they will make the final determination. Out of this new law comes the following rules:

The unit damaged will be restored to the condition it was in when delivered to the first owner by the builder, including the replacement of all original (only) fixtures, but not additions or improvements made by the current or previous owner(s).
The association can compel all owners to have owner's insurance (to cover everything else).
The association can charge back a deductible for a claim if the damage was caused by a unit owner, subject to notice and a hearing.

In conclusion, if the issue is routine maintenance (repair, restoration, replacement) of any amenity, including limited common elements, the declaration must be consulted to see if there are permitted exceptions to the Condominium Act. If the issue is damages covered by insurance, it should be submitted to the association’s carrier and periodically the declaration and bylaws should be reviewed, updated and amended so they are consistent with and not contradictory to the Condominium Act.