Unfortunately, many associations face difficulties when damages to common elements are discovered. Typically, an association is compelled to bear the expenses of fixing or replacing the damaged common element. However, what if the damage is caused by a unit owner or associated with an individual unit? Most condominium declarations provide that the expenses incurred in repairing a common element damaged by a unit owner can be assessed against that owner or unit. A more unique question is encountered when the association cannot determine who caused the damage, yet the common element is either solely accessible by one unit or obviously under the control of a single unit.

One Association was faced with such a problem. The supporting members of a roof truss system had been removed in the attic space of a unit to seemingly create additional storage space. The roof trusses were defined as a common element but were accessible solely through the living space of a single unit. Due to safety concerns the Association notified the unit owner of the damage and requested that the trusses be repaired or replaced immediately. When he unit owner failed to undertake the repairs, the Association contracted to have the work performed. Following the repair of all the damaged roof trusses the Association assessed the unit owner’s account for the cost of repair. The unit owner refused to pay.

The Association instituted suit for reimbursement of the expenses for the repairs. The Association’s Declaration provided that all expenses incurred in repairing damage of common elements should be borne by the unit owner or unit causing such damage. Further, the Declaration provided that all covenants contained within the Declaration “run with the land,” meaning all impositions, obligations, and rights are transferred from owner to owner. While the Association could establish that the damage to the common elements was related solely to this unit, it could not determine or establish who removed the trusses or when they were removed. The Association argued that it need only prove the existence of the covenant and its breach to receive reimbursement. The current unit owners argued that they did not remove the trusses. The current owners contended that the Association should sue the prior unit owners who they contended had sold them the unit with the removed trusses.

The trial court determined that the Association could recoup its expenses from the current unit owner. The obligation to pay for repairs to the common elements, related solely to this unit, was an obligation of the current unit owner. Accordingly, a judgment for the entire amount of the repair work was awarded against the unit owner. Additionally, the trial court, in accordance with the Declaration, awarded attorney’s fees in favor of the Association and against the unit owner.

The unit owner appealed the trial court’s decision to the appellate court. The appellate court affirmed the trial court’s ruling (in an unpublished opinion) and held in favor of the Association. On appeal the unit owner argued that the trial court, in effect, imposed strict liability without requiring the Association to establish that the current owners caused damage to the trusses. In response, the appellate court stated that “the existence of a covenant and the existence of a breach are the relevant issues in this type of case; once the covenant and breach are established, enforcement is entitled.”

This decision is particularly beneficial to associations in that it recognizes the mechanism of recovery for damage to common elements. Similarly, the decision stands for the proposition that new unit owners, by virtue of their ownership, assume all responsibilities and obligations which could have been assessed against the prior owners. If the prior owner damaged the association’s property within the unit, the new owner can be held responsible for the costs and expenses. Similarly, if the prior unit owners had failed to pay all their assessments, the new unit owner would be responsible for bringing the account current. Moreover, the association is not required to pick up the tab for the repair work merely because the unit may have been transferred since the damage was done.

Subsequent to the sale of the unit in the case described above, in 1991, the Illinois General Assembly passed a law which may have some impact on Associations and repairs or alterations to common elements. The statute, 765 ILCS 605/22.1(a), requires the Board of Managers to provide several statements when a unit owner, other than the developer, decides to sell his or her property. One of the required statements that the Board must make is that “any improvements or alterations made to the unit, or the limited common elements assigned thereto, by the prior unit owner are in good faith believed to be in compliance with the condominium instruments.” (765 ILCS 605/22.1(a)(8)). The burden is on the unit owner selling the unit to request these statements from the Board in writing. But after the request is made to the Board, the Board is required to furnish the statements to the unit owner within 30 days. The burden is then on the prospective purchaser of the unit to demand the Board’s statements from the seller to whom the Association provided the information.

With this in mind, it is important to note that the Board is not required to automatically provide a statement under 765 ILCS 605/22.1(a)(8) every time a unit is sold. Rather, the Board’s issuance of a statement is dependent upon several occurrences. First, the prospective purchaser of a unit must request a statement by the Board from the current unit owner. The current owner must then request the statement from the Board. If these two events occur, then the Board must provide the required statement to the current unit owner within 30 days. If either of these events do not occur, then the Board is not required to make a statement for that unit.

For each instance that the Board is requested to make a required statement, the Board should take certain steps to make sure that it complies with the Illinois Condominium Property Act when it makes the required statements. If the Board is making a statement regarding alterations or improvements, then it should inspect the unit. In inspecting the unit, the Board should look for all alterations or improvements made in the unit and the limited common elements assigned to the unit. The Board should ascertain whether each alteration or improvement complies with the Association instruments. In its required statement, the Board should clearly identify each alteration or improvement in the unit or limited common element which the Board in good faith believes does not comply with the Association instruments.

Accordingly, as Ben Franklin once wrote, “[a]n ounce of prevention is worth a pound of cure.” If prospective buyers require that all the applicable disclosures under 765 ILCS 605/22.1 be complied with, the described situation could be avoided. Additionally, if an Association is making an affirmative representation about alterations or improvements, it should make sure that either no alterations have been made or that any alterations are in compliance with the governing documents. Otherwise, despite language in the declaration which may hold a unit owner responsible, the association, not the owner, would be responsible to repair or replace the damaged common elements.

This article is being provided for informational purposes only. This article does not constitute legal advice on the part of Costello Sury & Rooney. or any of its attorneys. No association, board member or any other individual or entity should rely on this article as a basis for any action or actions. If you would like legal advice regarding any of the topics discussed in this article and/or recommended procedures for your association going forward, please contact our office.