Who is responsible for LCE damage in event of negligent maintenance of CE by HOA?

[Tara Adi]

I wanted to share a situation regarding a persistent water intrusion problem affecting only two units within our newly constructed condo building consisting of 12 units. Since early 2022, we've been dealing with this issue, primarily near the windows. Our investigations, supported by reports from certified structural engineers and multiple masonry and window technicians, have identified defective masonry work as the root cause. We also contacted the window company, who identified it as faulty installation by the builder rather than a product defect. The issue has persisted for two years, with one of those years falling within the builder's warranty period.

Unfortunately, our attempts to address the situation with the builder have been met with unresponsiveness, even after involving legal counsel. Despite considerable deliberation, the HOA decided against pursuing legal action due to its high cost. However, the prolonged decision-making process has resulted in irreparable damage to the windows, confirmed by the window company as improper initial installation by the builder. Had the repairs been prioritized as soon as a decision was made not to sue the builder, the extent of damage would have been limited. We are getting cold draft, water intrusion through all the windows during extreme cold temperatures and rain. This has led to mold which has already started to show and warped hardwood floors.

Recently, the HOA finally resolved to commence a masonry repair project and agreed to fund the replacement and proper installation of the windows. These decisions were unanimously supported by the members present. However, two unit owners have invoked the Maintenance, Repair, and Replacement (MRR) section of the bylaws, claiming that window maintenance falls under the responsibility of unit owners. One of these unit owners, who is now refusing to pay, is also attempting to sell their unit, so obviously they don't have a vested interest in the building anymore. The other unit owner has deep pockets and is using scare mongering tactics.

It's important to note that the entire HOA, not just the board, is involved in the all of the decision-making process for the building. I've also come across an article authored by a renowned attorney in Illinois Condominium Law (https://www.cai-illinois.org/liability-condo-associations-damages-caused-failure-common-elements/) which states that since the association neglected to address the masonry issue, which is a common element, they bear responsibility for damages to the limited common element and the interior as well. Furthermore, they indicated that since this pertains to a "defect" issue, the MRR provision does not apply. Although the builder may be at fault, the responsibility now falls on the association as the HOA opted against pursuing legal action against the builder.

For added context, my insurance says to ask the HOA's insurance. The HOA's insurance won't cover it as it is due to building defect.

So, in this scenario, who is liable for the window replacement costs: the HOA or the unit owner? I'd appreciate any insights or perspectives on this matter. I don't have "deep" pockets and can't afford to hire my own $$$ attorney.

[Chris Seveney]

@Tara Adi

I am not an attorney

My experience has been owning a condo as well as building 1,000’s of them

In this instance there was a defect from the common area element that caused damage to the window which would be the responsibility of the HOA

Think of it another way, if the roof leaks and destroys your drywall ceiling - are you responsible to replace the drywall? No it should be the hoa because of what caused the damage.

End of day the unit owners pay, just a matter of how it is split.

If I was a unit owner I would get an attorney and go after the hoa on this