Breach of Fiduciary Duty The Warranty of Habitability

While a condominium owner owns his unit, and a shareholder in a cooperative owns shares of a corporation, there are a lot of aspects of their living situations that they can't control. If the elevator doesn't work, or the grass isn't being cut, or there are leaks in the hallway that fall under the building's responsibility, the individual homeowner depends on their association board to have the situation rectified.

But what if they don't? What if the elevator's broken for three weeks, the grass is a foot high and the water in the hallway is three inches deep? What can the homeowners do to get their buildings' boards to live up to their responsibilities?

Warranty of Habitability

In a landlord-tenant rental situation, there exists what's commonly referred to as a warranty of habitability. The warranty of habitability is a legal concept that protects a tenant from a landlord's failure to properly maintain an apartment that is being rented. Essentially, it allows the tenant to withhold rent if, for example, the landlord isn't repairing leaks, or isn't responding if the heat doesn't work, or if appliances like refrigerators aren't operating properly.

"[If] you have a tenant that is not satisfied with the conditions and withholds his rent every month," says David Byrne, an attorney shareholder with the Lawrenceville, New Jersey office of Stark & Stark, "when the landlord files an eviction action, the tenant posts the money in court and says that the landlord has violated the warranty of habitability and that he shouldn't have to pay until these issues are resolved."

"The basic premise is that every residential lease carries with it an implied warranty or covenant of habitability," says Andrew McDonald, an attorney with Lomurro Davison Eastman & Munoz PA in Freehold.


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  • Upon reading this article I have the following comment. The Boards have a lot of power and as any powerful people any where have often done attempt to insinuate their control over ever increasing areas of Condo Life. The Legislature since it has created the Condominiums, should specify some common issue areas which the Board can not interfere and leave these areas to the discretion of the residents. The 'Business Model' may be satisfactory for a widget manufacture but completely inappropriate for the management of humans and hence Condominiums.
  • Anonymous Coop shareholder on Saturday, January 24, 2009 12:09 PM
    I purchased and closed deal only to find out upon removing the carpet I was responsible for the bad floors under the carpet. Does this make sense to you when both the Seller and the Board knew the floors were bad before purchase. I'm trying with bad lawyers to make my case. I need help!
  • why didn't you inspect it.
  • Buyer Beware! Yes unfortunately you are responsible. It is not a function of the Board. However you should go after the seller, perhaps the lemon law can help you.
  • I am a member of a Va. condo assoc. One of our board members(the president) is not a unit owner. The unit is owned by his wife (he is a convicted felon and did not wish to disclose this info). How do I get him removed from the Board?
  • @James - Check your by-laws. There should be something in there about process to remove a board member.
  • The new president of the board is from Canada and is here only in the winter season...he has named a new managment co. for the assoc. and the maintenance fee now has to go from s. florida to Las Vegas, Nevada....I am worried about all of does it sound like to you???
  • My roof leaks in my condo and have for 3yrs I have a trash can to catch the water when it rains I sent pictures,certified letters and still they won't fix it. people are walking away from their condo's and the Assoc. is buying thru the courts for a few hundred dollars. in florida the HOA are out of control. who can we get to make the repairs.
  • If a buyer finds out that a seller or seller's agent knew of a defect on the real property before the sale and failed to disclose that fact he or she could be held liable to repair all damages. In addition, the buyer may be able to require the seller to refund all moneys and accept the real property back to them. These are the rules in Colorado, but may be different in other States. Obviously one would need proof witnesses testimony etc. to assist your position.