By: Maya Ziv-El of Keough & Moody, P.C.
Common Elements-What are they and why should they be maintained?
One of the primary responsibilities of a Board of Directors is maintaining the common elements. Every Association defines a common element a little differently, but generally speaking, it is any part of the Association that is beyond the unit itself and not otherwise defined as a limited common element. Common elements can include roofs, exterior walls, landscape, utility areas, hallways, among other items.
Maintaining the common elements is important on many levels. It is important at minimum to maintain the property value, and may even increase the resale value of your unit. It is also important to maintain the aesthetics of the property as well as the integrity and safety of the structure. If common elements are not being maintained properly, not only does the Association suffer through the disrepair, but the situation may lead to loss of revenue of assessments, costly lawsuits, and an unhappy community overall.
The Costs of Failure to Maintain the Common Elements
In June of 2012, the Illinois Appellate Court held that in a lawsuit to collect common expenses from an owner (through seeking an order for possession,) the owner could raise as a defense to not paying assessments the issue of the Association’s failure to maintain common elements. Spanish Court Two Condominium Ass’n v. Carlson, No. 2-11-0473 (Ill. App. Ct., June 27, 2012). In practical terms, this means that in certain instances an owner can lawfully withhold assessments if the Association is not maintaining the common elements. This recent law makes it more important than ever for an Association to make maintenance of the common elements a top priority.
Besides the potential for lost assessment income, a Board’s failure to maintain common elements can also open up the Association to various forms of liability. For example, a failure could result in damage to an Owner’s unit, or maybe even cause injury to an owner because of unsafe conditions. Depending on the situation, the Association may find itself in court defending against claims for negligence, injury, breach of fiduciary duty, etc.
An Association may also have to defend against a lawsuit for breach of contract. Besides being outlined in the Illinois Condominium Property Act, the duty to maintain common elements is also usually found in the Association’s governing documents. Therefore, an owner may attempt to bring an action against the Association for breaching the governing documents (the “contract”) by failing to maintain the common elements.
So What Should We Do?
There are no winners when common elements are not properly maintained. The owners can suffer because of maintenance issues that may affect individual units and lost value of their units. Associations suffer collectively because of the costly repercussions of owners withholding assessments, defending expensive lawsuits, risking unsafe structures, and overall disgruntled members.
A concerned member can start by attending a board meeting, contacting the manager, or even running for a board position. An Association should begin by ensuring that its management company has the knowledge and foresight to keep the property at its best.
*Also contributing Rosario Spaccaferro of Keough & Moody, P.C., 1250 E. Diehl Rd., Naperville 60563 630-245-5068 ^ www.kmlegal.com