One of the most important things to understand as a member of a condo or HOA is how responsibility for maintaining and repairing various building systems is divided between individual unit owners and the association at large.
When it comes to most buildings systems like HVAC or security, the responsibility for maintenance and repair falls to the association itself. But for other systems, it’s not so clear-cut. Especially for elements like pipes and radiators that are part of a community-wide system, but which terminate in private homes. For these elements, responsibility for repair and maintenance generally depend on the type of ownership and the community’s governing documents, and can vary significantly from one HOA to another.
These variations can be in the language of the documents or in the policies adopted by boards regarding repairs, says Karim G. Kaspar, an attorney who represents more than a dozen New Jersey condos as a senior counsel with the Roseland-based law firm of Lowenstein Sandler. “That’s why it’s vital to clarify who is liable for repairs, upkeep and maintenance for all building systems before something happens and you’re left footing the bill for the damage,” he says. “When you look at the big picture, generally speaking the common elements are defined in the master deed and that controls who has responsibility for those repairs.”
Up to the Association
Looking at the governing documents is the easiest way to know what the association is responsible for, but the general rule of thumb follows the inside/outside the wall model.
“The big pipes for plumbing, and the main electrical panels that are in the walls or in a common area that control the power to the building are usually the association’s responsibility,” Kaspar continues. “If there is a swimming pool or other amenities, those would be the association’s responsibility as well when it came to their wiring and plumbing.”
There are a number of high-rise buildings in New Jersey that fire code regulations require to maintain fire pumps and a certain amount of water pressure on different floors. These systems are maintained by the association, as they need to test them periodically.
“The typical cooperative is responsible for every portion of the building except that which is specified to be the obligation of the shareholder,” says Marcie Waterman Murray, a partner with the Manhattan-based law firm of Deutsch Tane Waterman & Wurtzel, PC. “The typical condo is responsible for those building portions designated as common elements (roof, building walls, elevators, public hallways) depending on the language in the declaration.”
Another area where the association needs to be in control is when there is a boiler or furnace in the basement that services the whole building.
“Since it deals with the entire building it is naturally the responsibility of the association,” Kaspar says. “If the furnace breaks or the pipes in the wall burst, it’s covered by the association.”
It’s Up to You
Most unit owners are responsible to repair those portions of building systems that are exposed and visible within their home. Some examples of this include exposed gas, steam and water pipes attached to fixtures, appliances and equipment and the fixtures, appliances and equipment to which they are attached, such as exposed pipes leading to radiators, convectors, sinks, toilets, washing machines, dryers, dishwashers and refrigerators and those fixtures and appliances as well.
“Once the pipes branch into a unit for a bathroom or kitchen or once wires come into the unit, then it becomes the owner’s responsibility,” says Kaspar. “As any connections come into their units they become responsible whether it be plumbing or electrical.”
Owners are also responsible for lighting and electrical fixtures, appliances, meters, fuse boxes, circuit breakers and electrical wiring and conduits from the junction box at the riser into and through the home.
“In the typical condo, unit owners are responsible for everything inside a unit except for defined common elements and structural repairs to certain limited common elements,” says Murray. “They are also responsible for any maintenance, repair or replacement caused by a unit owner’s negligence, misuse or neglect.”
Even though the condo bylaws may put the maintenance and repair obligation on the owner, many boards of directors prefer to have all repairs (even those inside the unit) performed by a contractor of their choosing, to assure uniformity and quality of repairs.
“You don’t want unit owners breaking the walls and doing repairs that could affect the other units,” says Kaspar. “They can repair something little, but not something that could jeopardize something in a floor above, next to or below them.” This occurs a great deal when there are plumbing problems with hot water heaters. People have their own plumbers come in and do repairs, but if it’s not done properly, it causes problems for the people connected to them.
“Is it the association’s fault for the pipe coming in or the owner’s fault?” asks Kaspar. “When homeowners do repairs and don’t get the proper permits or use licensed plumbers or licensed electricians, I see a problem. I encourage condo boards to put policies in place to require permits and licensed professionals for all jobs.”
Shades of Grey
In a condo, the bylaws typically make the repair of common elements the expense of the unit owner, especially if it is necessitated by negligence, misuse or neglect of the owner.
“The condominium may thus charge back to the unit owner for the repair,” Murray says. “However, if the damage is considered a casualty, condo bylaws also generally make the repair the obligation of the condominium. The actual governing documents and the condo’s insurance policy would have to be examined to determine who should pay.”
Consider the following example: Let’s say a unit owner overloads their home’s electrical capacity and does damage to the wiring in their section of the building. Is it always their responsibility?
“Without having the specifics—including the governing documents—it’s impossible to say definitively,” says a long-time property manager based in Flemington. “Although on its face, it would appear that the owner would have some, if not all of the responsibility.”
Kaspar says that since each unit owner’s electric should be connected to their own circuit breaker in the electrical panel, it should only burn out their wiring. If it does create problems with wiring to others, than there could have been a problem at the panel, which is an association’s responsibility.
Making it Clear
Owners are sometimes confused by or are unfamiliar with the community’s governing documents, which is why you can’t just assume you aren’t liable if something goes wrong.
“Regardless of the type of community—co-op, condo, homeowner association— the board of directors or board of trustees would be wise to have the community’s attorney review the governing documents and come up with an easy to read and understand chart of responsibilities,” the Flemington manager continues. “Upon completion, the chart of responsibilities should be disseminated to all community residents, whether they are the owners or the tenants.”
The board should communicate with the building’s tenants/shareholders and advise them of their building’s policies regarding repairs, replacements and alterations. This will avoid claims that tenants/shareholders were not aware of their obligations.
“Certainly the best way to avoid conflict and confusion regarding responsibility is to have the responsible party designated in the proprietary lease or condominium bylaws,” Murray says. “It helps if the co-op/condo is consistent in its treatments of the situation each time it arises and it is useful for the applicable responsibility to be communicated to all shareholders/unit owners in writing.”
Fire alarm systems, emergency lighting, elevator maintenance, ventilation systems, sprinklers and more are all critical to the safety of the homeowners, your property and your investment, so an association needs to make sure they are on top of all of these building systems.
At the same time, the smaller things in your home that you are responsible for are just as important. Unit owners need to understand what they are accountable for and provide regular maintenance checks and repairs.
Keith Loria is a freelance writer and a frequent contributor toThe New Jersey Cooperator.