UNDUE BURDENS: BOARD MEMBERS AND PROPERTY MANAGERS ARE UNNECESSARILY – AND UNWITTINGLY – ASSUMING TREMENDOUS RESPONSIBILITIES (AND POTENTIAL LIABILITIES)

Published on: July 26, 2016

You’ve probably heard the expression that “a little learning is a dangerous thing.”  Unless you have the required training or experience, it’s unlikely that you’d pretend to be a doctor, an airline pilot or sushi chef, because an amateur in any of those positions is likely to do more harm than good.  Yet you and your fellow board members – whether you know it or not – might be playing the part of state building code inspectors.  In that case, to paraphrase Alexander Pope, a little learning can be both dangerous and expensive.

While most condominium board members likely assume that they have some level of responsibility for maintaining the common areas in a reasonably safe condition, few are likely aware that – depending on the contents of their condominium documents – they are responsible for ensuring that repairs made to the condominium property must be performed in accordance with the Massachusetts State Building Code.  Similarly, many property managers have assumed the role of Code experts as a result of language commonly found in many standard management agreements.  In light of the fact that few condominium board members (or property managers, for that matter) have any familiarity – let alone expertise – with the Building Code, it would be prudent to have these condominium documents and management agreements revised to relieve volunteers and laypeople from having to adhere to this impractical standard.

Trustees Responsible for “Proper Maintenance” of Common Areas Required to Be Code Experts

Generally speaking, a condominium association owes a duty of reasonable care to all persons lawfully on the condominium property.  Soederberg v. Concord Greene Condominium Ass’n., 76 Mass.App.Ct. 333 (2010).  This duty includes an obligation to maintain the condominium property in a reasonably safe condition for lawful visitors.

In O’Brien v. Christensen, 422 Mass. 281 (1995), however, the Supreme Judicial Court may have created a heightened duty for a condominium association to provide for the “proper” maintenance of the common areas of a condominium in instances where the governing condominium documents contain certain specific language.  The case involved the City Point IV Condominium – a four-story structure in South Boston with commercial condominium units on the first floor and nine residential units on the second through fourth floors.  Some of the residential units had access to a system of undivided wooden porches that spanned the rear of the building.  The two plaintiffs were tenants in residential units at the building who were injured when a railing on a third-floor porch of the building gave way and the two men fell more than twenty-five feet onto a neighbor’s porch.  The two plaintiffs sued, among others, a trustee of the condominium trust, alleging that he was liable for the negligence of a carpenter that had been hired to remove and replace the porches on the building – including the porch from which the plaintiffs had fallen.  The evidence presented at trial demonstrated that the carpenter had failed to construct the porch railings in accordance with the requirements of the State Building Code.  The Supreme Judicial Court concluded that the trustee was liable to the plaintiffs for the carpenter’s negligence.  In other words, the trustee was responsible to the injured plaintiffs because the carpenter failed to construct the subject porch railing in compliance with the Building Code.  The SJC found that the trustee’s liability was determined by the obligations contained in the declaration of trust “to make repairs, additions and improvements to or alterations of the common elements,” and “to be responsible for the proper maintenance and repair of the common elements.”

The O’Brien decision can be interpreted as creating a heightened duty for a condominium association to provide for the proper maintenance of the common areas of a condominium.  As such – despite any “reasonable” efforts by the Trust – the Trust could be held liable, under O’Brien, if it is determined that the railings were not properly maintained.

In reaching its conclusion, the SJC focused on the word “proper”, which was contained within the declaration of trust.  As mentioned above, the condominium trustees were “responsible for the proper maintenance and repair of the common elements.”  The SJC viewed the obligation to provide “proper maintenance” of the common elements as an express promise by the condominium trustees.  Specifically, the SJC provided that “[b]y enforcing the [condominium trustee’s] promise, we are giving effect to his express obligation, undertaken in his capacity as trustee, to make sure that the porch was maintained properly.”

While not specifically addressed in O’Brien, it would appear that – absent the word “proper” with regard to the maintenance of the common areas – the Court likely would have only held the condominium trustee to the less onerous “reasonable care” standard.  In that case, the condominium trustee likely would have escaped liability – based on the fact that he hired a licensed contractor to address the defective railings at the condominium.  The actions of the condominium trustee would likely have been found to be exercising “reasonable care” with respect to the maintenance of the common areas.

Unfortunately, the condominium documents of many associations similarly provide that the trustees are responsible for the “proper” maintenance of the common areas.  As such, based on the O’Brien decision, these trustees may be responsible for ensuring that the work performed by the contractors they hire to perform at the condominium must comply with the provisions of the State Building Code and standard industry practices.  In other words, condominium boards ensuring “proper maintenance” are responsible for knowing whether the use of single-nail connections in conjunction with the installation of porch railings is improper – as was the case in O’Brien.  Understandably, no condominium board likely has any appreciation that they are assuming such substantial potential liability each time they hire contractors to work at the condominium.

If there is language in the declaration of trust requiring that the trustees provide “proper maintenance” of common areas, the condominium board should look to either have this language revised or eliminated.  No volunteer board member should assume the responsibility (and potential liability) for ensuring that all work performed at the condominium is code compliant.  Unfortunately, many board members throughout the Commonwealth have unknowingly assumed this burden.

It is notable that, in the ten years since the O’Brien decision was issued, there has been little case law addressing the apparent heightened duty to provide “proper maintenance” of the common areas in instances where language to that effect is included in the condominium documents.  Nonetheless, the O’Brien decision was issued by the Supreme Judicial Court and, accordingly, trustees would be well served to assume that the decision’s apparent holding concerning “proper maintenance” will be upheld by the lower courts of the Commonwealth.

Management Agreements Placing an Unnecessary Burden on Property Managers

Property managers are similarly accepting heightened duties based on terms that, for whatever reason, are commonly found in management agreements.  Many management agreements have terms providing that the property manager will “cause the condominium property to be maintained and repaired in accordance with state laws and local ordinances.”  As such, these managers – just like the board members who have agreed to provide “proper maintenance” of common areas – have likely taken on the responsibility to ensure that projects undertaken on the condominium property will be compliant with the Massachusetts State Building Code.

Few management companies keep professional engineers, architects or other such Code experts on the payroll.  Even if they did, it is unlikely that they could assign these folks to closely monitor each project undertaken at the condominiums that they manage to scrutinize for code compliance.  Further, it is doubtful that condominium boards would expect (or be willing to pay for) this level of expertise from the companies that manage their properties.

Accordingly, it makes little sense to maintain these onerous provisions in standard management agreements.  Management companies should revise their standard agreements to reflect their acceptance of a less burdensome “reasonable care” standard with respect to the performance of maintenance and repair of common area property.