Board members have a duty to maintain and improve property values within their condominium, homeowner (HOA), and townhome associations.
To satisfy this obligation, Boards must:
- Address upkeep and infrastructure concerns that impact the health and safety of community residents.
- Adequately inform themselves as to the condition of the property and any common elements or common areas.
- Where appropriate, seek the advice of professionals such as engineers, architects and contractors to determine what work, if any, needs to be performed.
Below are three maintenance and safety factors that should be considered by Board members, community leaders, and property managers in the exercise of their duties.\
1. Look for Warning Signs
Safety red flags within the community can originate from an emergency or natural disaster (ex. earthquake, flooding, hurricane, tornado, wildfires). They can also be caused by construction defects, climate conditions, and the effects of time.
As properties age, they can show signs of distress, including:
- Mechanical components that are not fully functional or have reached end-of-life
- Corrosion and saltwater oxidation
- Compromised retaining walls
- Groundwater or storm water build-up
- Compromised windows
- Faulty waterproofing
- Water pooling, seepage, and leaking
- Sloping or warped floors
- Corroded pipes
- Failed drainage system
- Dry rot in wood
- Cracks in paint or concrete
- Foundation issues
- Floors and roofs that have reached/are over maximum capacity weight
- Bowing, cracked, or spalling beams, columns, stucco, and walls
- Concrete and masonry deterioration (ex. flaking, hairline cracking, exposed rebar)
- Corroded and Rusted steel
- Slab expansion
- Railing and stairwell instability
- Leaking or unsteady balconies
- Electrical concerns (ex. exposed wires, non-functional emergency lighting)
2. Rely on the Professionals
Property managers, legal counsel, licensed architects and engineers, and trade contractors (electrical, elevator maintenance, fire prevention, plumbing, HVAC, mechanical, etc.) provide valuable insight.
They can identify and address potential issues including:
- Building codes
- Construction
- Deferred maintenance
- Historic building standards
- Inspections
- Municipal regulations
- Permitting
- Recertifications
- Structural engineering
- Safety violations
These professionals often prove necessary to assist the Board with its decision-making process. Additionally, these resources can assist the Board with preparing budgets and setting reserves for the community.
3. Stay Proactive
A community should have a plan to monitor and evaluate the condition of the property on a regular basis. Additionally, certain municipalities (ex. Chicago) have mandatory inspections of the building facades and other portions of the community that must be conducted at certain intervals.
Having a schedule in place for these inspections will help prevent the community from running afoul of the inspection requirements.
In evaluating a community’s upkeep requirements, it is important to keep in mind that there have been significant changes in new construction building materials and technology. Additionally, building codes are constantly evolving.
Board members are volunteers, not experts. They will certainly be unaware of revised building codes. Or the due diligence, inspection, and reporting standards that go under scrutiny after a disaster such as a building collapse.
It’s inevitable that older buildings and properties will have maintenance issues. However, newly constructed communities are not immune from maintenance issues. Additionally, high rise condominium and apartment complexes continue to add amenities such as electric car charging stations, fitness centers, pools, and roof top decks.
Staying proactive also minimizes the odds of having unforeseen circumstances arise. Whether you live in a downtown condominium or a sprawling suburban HOA, Board members must pre-emptively plan and deal with repair and safety issues. Fears of increasing assessments or levying special assessments can lead to underfunded reserves. Deferred maintenance can discourage sales. Ignoring the warning signs and poor planning can create a costly crisis.
In addition to the three steps discussed above, there are other actions that Boards should take to be prepared in case of an unforeseen circumstance and potential litigation.
4. Safeguard Records
Governance of a community association requires a great deal of documentation. Budgets, meeting minutes, owner information, voting records, and insurance policies represent a small sample of the records that a Board must maintain and archive.
Below are some maintenance and safety documents that should also be safeguarded:
- Designs and blueprints
- Permits
- Surveys
- Construction documentation
- Inspection reports (elevator, roof, etc.)
- Structural audits
- Repair, replacement, and restoration records
- Civil violations and fines
- Reports and communications from consultants and professionals
- Information regarding claims made to insurers
- Communications with owners and residents regarding conditions in the community
5. Maintain a Robust Document Retention Policy
A well-drafted document retention policy assists with association operations and record keeping organization. It exhibits transparency and allows board members to be prepared in the event of:
- Board turnover
- Unit owner issues
- Litigation
- Fines
- Federal, state, and/or local government requirements
The association’s legal counsel can assist in drafting a document retention policy. Furthermore, proactively reviewing documents with legal counsel on a regular, established basis ensures the association has correct, up-to-date information.
Do not hesitate to contact our law firm if your association has questions regarding the Board’s fiduciary duties, building codes, reserves, document retention, or other legal concerns.
Please call 855-537-0500 or visit www.ksnlaw.com.
Please note the material contained in this article is for educational and informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained in this article. You should not act on the information discussed in this article without first obtaining legal advice from an attorney duly licensed to practice law in your State. While KSN has made every effort to include up-to-date information in this article, the law can change quickly. Accordingly, please understand that information discussed in this article may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete, or up to date. KSN reserves the right to revise or update the information and statements of law discussed in the article law at any time, without notice, and disclaims any liability for your use of information or statements of law discussed on the article, or the accessibility of the article generally. This article may be considered advertising in some jurisdictions under applicable law/s and/or ethical rules/regulations. © 2021 Kovitz Shifrin Nesbit, A Professional Corporation..