Sunday, January 19, 2014

Common Elements Require Common Sense

Over the weekend, a Bay Harbor Islands condominium had one of its docks collapse, sending twenty people into the water with two being taken to the hospital afterwards.

Twenty to twenty-five feet of the 100-foot-long structure collapsed. Reports still have not surfaced as to the reason for the collapse or when the last time the dock was inspected, maintained or repaired.

What is certain is that the condominium association (and hence, its members) will be on the receiving end of a lawsuit related to this incident.

Far too often, both directors and members in community associations take a rather lax approach when it comes to maintaining, repairing and replacing common elements and limited common elements. Sometimes this attitude is tied to an effort to "cut costs" and other times it stems from a feeling that the amenity in question does not serve the majority of residents.

In the case at hand, some association members may not have thought about the docks in years since they may never have used them. However, that lack of use will not insulate any of the members from the resulting special assessment to pay for legal fees and/or a judgment should one be secured.

It is reasonable for association members to assume that the common elements and limited common elements are being properly maintained and insured but experience has taught that is not always the case. When was the last time you thought to inquire about the state of your community's pool, tennis courts, clubhouse or other recreational amenity? This question applies to both members of the board and owners alike. If you don't ask, you may be making some dangerous assumptions.

It behooves every association member and certainly every director to ensure that the common areas are properly maintained and insured in the unfortunate event an incident causing injury or loss of life occurs.

1 comment:

  1. Great article. How does your state disperse occupiers liability after injuries/loss on NON-CONDO tenancies in common? Although our jurisdiction platforms CONDO owner victims suing their CONDO corporation deemed as statutory occupier of the common elements, NOT SO CLEAR in the case of NON-CONDO tenancies in common. ( Our jurisdiction undercuts POAs & HOAs by refusing to support affirmative aka 'positive' covenants against promissor's subsequent title-holders unless by unbroken chain of express title-registered promises to pay /comply/pass along ).

    IN YOUR STATE - do bare tenants in common ( ie no lawful POA; no partnership documentation ) have a valid basis for compensation against their co-owners ? The defence : how can you sue yourself ?

    And if so, IN YOUR STATE would a resultant liability of ALL co-owners - to the injured co-owner - be dispersed as if like a general partnership in solidum / 'solidary' / joint & several; OR instead severalty-style aka proportionately ? (In reality here one of the co-owners has been injured by negligent dock maintenance ) Bob Driscoll