P.K. from New Haven County writes:
Dear Mister Condo,
One unit in our small building has an addition that was built over a patio that was proprietary to the unit, so not a common area. The roof on the addition leaks, and the association is being asked to cover the repairs since the association is responsible for the share roof of the original structure. The current owners did not build this addition; it was done decades ago. But is the association liable for a roof that is not shared?
Mister Condo replies:
P.K., the short answer is “it depends” and what it likely depends upon is how the permission for the roof was granted decades ago. Since the roof wasn’t part of the original structure, I assume that the unit owner who added the roof did so with the express consent of the Board at that time. There should be a written record of the application to the Board and the approval from the Board for the structure to be built. The approval may have contained language that expressly names the unit owner as the responsible party for all maintenance of the roof as it is not association-owned property. If those documents cannot be found or if the Board granted approval without specifying the maintenance responsibility, you may have a bit of a sticky wicket.
The unit owner will argue that the roof is association-owned as is the roof over the rest of their unit. The association will argue that the roof is the unit owner’s responsibility. Without supporting documentation, the games will begin. Likely, the Board will deny the request to replace or repair the roof and the unit owner may take the association to court for clarification. Whoever is able to tell the best story will win. Of course, court cases generally involve attorneys so it might just come down to who is willing to spend the money on the legal fees to get this matter settled. I think I would simply pay for my own roof rather than sue the association but you never know what a unit owner will do. I think it is time to speak with the association’s attorney for a proper legal opinion on the matter. Good luck!