July 31, 2003
CONDOMINIUMS-DUTY OF ASSOCIATION TO REPAIR COMMON ELEMENTS
By: George Coppolo, Chief Attorney
You asked what rights condominium unit owners have when the association of unit owners refuses to make necessary repairs to common elements. You asked whether unit owners could refuse to pay their common charges and instead put them in escrow when the association refuses to make needed repairs. Our office is not authorized to give legal opinions and this report should not be considered one.
The association of unit owners must maintain, repair, and replace all common elements, and each unit owner must maintain, repair, and replace his unit, unless the condominium declaration provides otherwise (CGS § 47-249). Your note to us indicates the roofs need repairing and roofs are normally a common element that the association must repair. But unit owners must consult their condominium declaration to determine exactly what constitutes a unit and what constitutes a common element in their condominium, and who is responsible for making repairs.
Unit owners who believe the association is failing to make a required repair have several legal options. The unit owners could seek a court order compelling the association to abide by its statutory duty since CGS § 47-212(b) specifies that any right or obligation established by the condominium law is enforceable in court. If the dispute is under $ 3,500 they could file a small claims action. If it is more than $ 3,500, or if they would prefer the regular court procedures, they could institute a lawsuit alleging (1) a violation of this statute; (2) breach of contract alleging a violation of the declaration; and (3) a tort claim for economic injury because of the failure of the association to comply with the statute, the declaration, or both.
The law gives the association the right to assess each unit an amount for common expenses (CGS § 47-257). It also gives the association a lien against the unit of any unit owner who does not pay (CGS § 47-258). The law does not explicitly give unit owners the right to withhold payment if they believe the association is not following the requirements established by law or the declaration.
It should be noted that the above discussion relates to condominiums created since January 1, 1984 or to condominiums created prior to this date that choose to come under the Common Interest Community Act (CIOA). But the analysis for pre January 1, 1984 condominiums not under CIOA is essentially the same. The association is obligated to repair and restore any part of the building or parcel that serves the condominium as a whole (CGS § 47-84). The unit owners and the association must comply with the condominium law and all condominium documents and related rules and regulations (CGS § 47-75). Typically, these documents spell out the rights and duties of the association and the unit owners to repair the unit and the common elements. CGS § 47-75 explicitly gives an aggrieved party the right to file a lawsuit to seek damages or injunctive relief for a violation of the condominium law or documents. Unit owners could also use breach of contract and tort theories, and could use small claims court for damages of $ 3,500 or less.