When It’s Time to Pay for Repairs …

Repairs in condominium units and common elements and how they’re governed by the condominium declaration can be tricky. The first thing you have to determine is who’s responsible for a repair. To do that, you have to determine the area that’s being repaired. In a condo, the area is either a common element or a unit. Basically, the unit is the apartment, and the common elements are everything else.

What kinds of problems are we talking about? Here’s a specific one: two unit-owners were fighting over noise. The downstairs unit-owner claimed that his upstairs neighbor was making too much noise. An engineer determined that soundproofing had to be added between the floors. Although they didn’t agree on noise levels, the two unit-owners agreed on one thing: the space between the apartments was common area and the condo association should pay for the proposed soundproofing work. The condo’s insurance carrier refused to cover the repair because the problem was a construction defect. Since it was a defect, the condominium would normally look to the developer. But in this case, it was too late. He was long gone, and the statute of limitations had run out.

Now it became a question of who would pay: the unit-owners or the board? You would think that the area between the two units is a common element. In most condominiums, that would be how it played out, but in this case, the bylaws said that the area was a common element but the declaration said that it was part of the unit.

We now have a serious inconsistency. The bylaws say if there’s an inconsistency between the declaration and the bylaws, the declaration governs. (Just to be safe, we checked the floor plans, and the floor plans matched the terms of the declaration.)

This generated controversy. The unit-owners said, “Oh, no. That’s not what was intended. The bylaws should govern,” and the board argued: “This is a unit-owner responsibility.” But if it’s a unit-owner responsibility, which unit? Does the bottom unit give up part of its ceiling? Does the top unit give up part of its floor? It was an important question because they were going to have to put in a layer of soundproofing between the two apartments. The only way this is going to be resolved is through negotiation.

It’s not uncommon for these problems to arise. There are often inconsistencies between the declaration and the bylaws, or even between two provisions in the declaration. How do you repair it? If you prefer the terms of the declaration, you don’t have to amend the bylaws because they state that the declaration governs. The problem is the unit-owners would then be clearly responsible, and they prefer the terms of the bylaws. You could amend the declaration to bring it into line with the bylaws and more standard practice, creating common areas between the floors, but then you’re changing the common elements. In that case, you would have to get the approval of all the unit-owners, and even if you obtain their approval, the process to change the common areas is long and expensive, involving lawyers, architects, and expediters.

This is actually a problem without a good solution. To amend the bylaws or the declaration, you usually need a supermajority – often two-thirds of the residents. If, however, the change affects the common elements and the unit-owners’ interests as a whole, you have to get everyone to consent, which is very difficult. Finally, any change to the bylaws and declaration must be recorded with the City Register and the New York State Department of State. The amendment is not effective until it’s recorded. Often that step slips through the cracks