Q. As a condo board member for 15 years, we recently had an issue with a recently deceased owner’s family who pulled up the carpeting in the late owner’s ground-floor unit and found termites (which we are addressing), and cracks in the concrete pad. There is no crawl space. My concern is that these cracks are part of the foundation, and should be inspected for possible deterioration and mold infiltration. Some of the board members say that this is the owner’s responsibility and not that of the board or management because it is on ‘the inside’ of the unit.
I don’t understand how this can be an owner’s responsibility when the owners never saw the concrete pad when they moved in because it was covered with carpeting or wood floors, nor would they see it unless carpeting was replaced. I’m on the second floor, and two previous first-floor neighbors in different units in the same building had a mold problems. All the first floor units are damp. As a board member, how do we resolve this issue of inspection and responsibility?
—Who’s Really at Fault?
A. “The scenario posed by the board member is distilled into the question of is who is responsible for inspecting the concrete pad, and performing any repairs and mold remediation that may be necessary,” says attorney Eric F. Frizzell, an attorney with the Glen Rock-based firm Buckalew Frizzell & Crevina LLP. “This is a fairly straightforward question, and its answer should be readily found in the association’s master deed and bylaws. Those two governing documents together should define and describe the boundaries of the ‘unit,’ identify the common elements, distinguish between the ‘unit’ and the common elements, and specify the components that are the respective responsibilities of the individual unit owner and the association to maintain and repair.
“Normally, a concrete pad that is part of a building’s foundation is a common element that is the association’s responsibility to repair. However, it is imperative to carefully review the master deed and bylaws to confirm that this is in fact the case. Moreover, if the damage to the concrete pad was caused by the negligence or neglect of the unit owner or one of the unit owner’s guests, residents, or tenants, the unit owner may be liable for the cost of repairs, even though the association might otherwise be responsible.
“If it is determined that the unit owner is in fact responsible for remedying any mold that is found to exist, it is important for the association to assure that the unit owner hires a licensed, qualified mold remediation specialist to promptly eliminate the mold, and to prevent it from spreading to common elements or other units. If the unit owner fails to do so, the board likely possesses the power to arrange for the work to be performed and to charge back the unit owner’s account – again, the master deed and bylaws should be reviewed to confirm the board has this power.”