IT’S NOT WHAT IT LOOKS LIKE…THE INS AND OUTS OF WINDOWS AND DOORS
Based on the number of calls and emails I have received regarding the question of what is a window (or door) and who is responsible for the maintenance, repair and replacement of windows (and doors) and based on my review of numerous condominium documents, it appears that it would be best if condominium documents were made clearer.
In the first instance, there are several components to a window. There is the frame. That is really a portion of the building which holds the window in place but is not usually a part of the window. Next, there is the sash. That is the item that fits in the frame and holds the glass in place. That is a part of the window. Then there are munnions. Those are separations in Windows which have several smaller panes of glass. Those too are part of the window. Surrounding the window there may be grout and/or pointing and/or insulation. Those are ancillary to the windows but are not part of the windows.
The Master Deed sometimes refers to Windows when describing units or boundaries. If it does so, it may sometimes state that the boundary of the unit extends to the exterior surface of the pane of glass. That means that the unit owner does not own the dirt or anything else that accumulates on the surface. It is extremely difficult to determine responsibility when there is a crack in the exterior surface of a double pained window.
Some bylaws will ascribe responsibility for the maintenance, repair and replacement of windows. Many do not mention them. Who then is responsible for maintenance and repair, especially when the boundaries of the unit are defined in reference to stud inside the wall of the plasterboard attached to the studs? Who then owns the window and who was responsible?
In some situations, the following analysis may be helpful.
Section 1 of M.G.L.A. 183A contains definitions, including "Limited common areas and facilities", a portion of the common areas and facilities either (i) described in the master deed or (ii) granted or assigned in accordance with the provisions of this chapter by the governing body of the organization of unit owners, for the exclusive use of one or more but fewer than all of the units.”
It is clear that windows are for the exclusive use of the owner and unit. Therefore, in accordance with M.G.L.c. 183A § 6(a)(ii), “Notwithstanding the provisions of clause (1), the organization of unit owners may assess the cost of maintaining, repairing or replacing a limited common area and facility, solely to the owner of the unit to which a limited common area and facility is appurtenant, allocated, or designated, and such assessment shall be enforceable as a common expense assessment under this chapter; in the alternative, the organization of unit owners may require the owner of the unit to which a limited common area and facility is appurtenant, allocated, or designated to maintain, repair, or replace such limited common area and facility without the intervention of the organization of unit owners. Notwithstanding the provisions of clause (i), the organization of unit owners may assess to each unit owner the direct cost of any energy conservation device installed in a unit, not already separately metered for water and utilities, including but not limited to the installation of separate water meters, low- flow toilets and showerheads, faucet aerators, windows and storm windows; provided, however, that a unit owner required to install such energy conservation device hereunder may appeal to the board of trustees of the organization of unit owners or if there is no board of trustees, the entity performing its duties. Said board or entity of said organization, in its sole and reasonable discretion, may grant to such unit owner a waiver of such required installation upon such terms and conditions as the organization of unit owners shall deem fit.” (emphasis in bold added).
Thus, if windows are exclusive use Limited Common Elements or even if they are not, the Association may assess the cost thereof to the owner or may even require the owner to replace them.
In any event, it is probably wise to review your documents and determine whether or not they need amendments to avoid running into problems, including litigation, that crops up from time to time.
Written by
Henry Goodman