Board Mandating Brand New Condo Windows Be Replaced!

B.R. from Washington, D.C. writes:

Dear Mister Condo,

Mr. Condo!  Hello from our Nation’s Capital! I have a quick question about an issue I’m having with my condo. I purchased in November, 2013. The 240-unit building was built in 1987 and most people still have the original steel frame windows. My windows were completely shot, letting in all kinds of cold air making it very uncomfortable to live there. So, I spoke with two different people from the building management team who stated that windows were the owner’s responsibility and gave me a few references of companies that other people have used to purchase conforming windows.

So, I went forward, got bids from two of the frequently used companies, and had my windows replaced at a cost of $3,200 (3 windows total @ 1k each).  Fast forward 3 months and now enough people have finally complained about the windows that the association began looking at possibly replacing all the windows in the building. I believe the bylaws were vague about who owns – classified as a limited common element? Great news if I hadn’t just replaced mine at the discretion of building management. I would estimate there are about 50 people who have already replaced their windows to conforming new windows.

My question is this: can the condo association FORCE each unit owner to pay for new windows if they already have conforming windows? I hope there is a way they would need to have an “opt-out” option for people that have already replaced theirs and some kind of reimbursement, but it’s sounding like they are hoping to force replacement of every window in the building. They’re consulting with attorneys as several other residents have threatened lawsuits over this so I hope you can shed some light on this!

Mister Condo replies:

B.R., greetings to you as well. While I never like to hear about lawsuits regarding unit owners versus association Boards, I think your fellow unit owners are on the right path by threatening a lawsuit. Please keep in mind that I am not an attorney so please take this advice as friendly and not legal. For a legal opinion, I suggest you speak with a qualified attorney.

It sounds like the Board is well-intentioned but may not have all of the facts they need to take proper action. Regardless of who owns the windows, the Board does have a right and a duty to keep the property “maintained, protected, and enhanced” and to enforce the architectural compliance standards of the association. That includes mandating replacement of worn out windows like the ones that you have described. That does not include forcing repairs to windows that are not worn out or past their useful life. The proper procedure would be for the Board to investigate on a unit by unit basis, the age of each of the windows and determine if the windows need to be replaced. In my opinion, they are overstepping their authority by mandating ALL windows be replaced, especially in cases such as yours where you can clearly document that your windows have already been replaced and are in compliance with association architectural standards.

All of that being said, the powers of your Board are clearly outlined in your condo documents. I am not surprised to learn that there is some grey area with regards to who owns the windows (“limited common element at the expense of the unit owner” seems to be the interpretation by the Board and owners at this point) but even so, the Board is wrong to require that unit owners who have already updated their windows do so again. Once this is pointed out to them, even at the threat of lawsuit, they are likely to change their tune. Keep in mind that your Board is populated by well-meaning volunteers and they are likely doing the best as they know how. This issue hasn’t come up since 1987, long before any of them were at the helm of the association. I would allow them a mulligan and give them a second chance to properly address this situation. All the best!