Q. I am a unit owner in a condominium association. Our condominium declaration states that dogs are not allowed to be kept in units, and a maximum of two cats are allowed per unit. However, successive boards have chosen not to enforce the restriction prohibiting dogs. Two years ago, the board of directors approved rules and regulations regarding allowed dog breeds and imposing dog weight limits. How can the rules and regulations allow dogs when our declaration prohibits dogs?
A. Section 4.1 of the Condominium Act states in the event of a conflict between the provisions of the declaration and other condominium instruments, such as rules and regulations, the declaration prevails except to the extent the declaration is inconsistent with the Condominium Act.
Therefore, rules and regulations cannot allow dogs when the declaration prohibits dogs in units. Board members would be breaching their fiduciary duty for failing to enforce the provisions of the declaration and must reaffirm their intent to prospectively enforce the declaration by board resolution, and actually do so. The board will be equitably precluded from enforcing the dog prohibition against unit owners who detrimentally relied on the board’s temporary waiver of enforcement of the dog prohibition during that time period; however, the board must enforce the declaration restriction prospectively on all units.
If the consensus in the community is to allow dogs in units, the declaration needs be amended to allow dogs, which requires the requisite unit owner approval as stated in the declaration amendment provision.
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Q. I live in a small condominium association and my unit incurred water damage from a leaking common element water pipe. The damage to my unit was exacerbated by the board president who refused to call a plumber to turn off water to the plumbing stack for many hours after the location of the common element water leak was discovered. Since the water leak incident, neither the board nor the management company will discuss with me addressing the damage caused to my unit from the common element pipe. Is the association liable for damages to my unit?
A. Pursuant to section 12 of the Condominium Act, the association is liable to repair damaged drywall with a primer coat of paint. Most governing documents state unit owners are responsible for their personal property and decorating within their unit, which includes wall and floor coverings such as paint and hardwood floors. Most governing documents also require unit owners to purchase homeowners’ insurance for such casualty losses.
Depending on provable facts of what occurred, damages aggravated due to intentional conduct of a board member refusing to call a plumber for many hours could expose the association to additional liability.
Q. I am a unit owner in a small condominium association. We have had difficulty for many years soliciting unit owners to volunteer to serve on the board of directors. For several years, a married couple that owns one unit has served on the board of directors as separate directors. I am not sure this is allowed. Can two unit owners from the same unit serve on the board of directors at the same time?
A. Section 18(a)(1) of the Condominium Act states that board members must be unit owners; however, section 18(a)(1) also states if there are multiple unit owners of a single unit, only one of the multiple owners shall be eligible to serve as a member of the board at any one time. Therefore, a married couple that only owns one unit jointly in the association may only have one representative to serve on the board of directors at the same time, not both.
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