They say eyes are the windows to the soul; so then, what are windows. Are they the eyes into a major source of aggravation for condominium associations?
This column will not address HOAs since most of them require all owners to maintain their own windows; with condominiums, they are an entirely different issue.
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First, section 4.1 of Illinois' Condominium Property Act defines windows as being limited common elements. That seems simple enough except for the opening sentence of 4.1. "(a) Except to the extent otherwise provided by the declaration or other condominium instruments …"
Thus, it would seem that when it comes to repair and replacement of windows, the declaration would govern. (For purposes of this discussion, sliding patio doors and any other glass protrusions in the exterior are considered "windows.")
Next, Section 9 (e) states that the condominium instruments may provide for the assessment in connection with expenditures for the limited common elements, of only those units to which the limited common elements are assigned."
That would seem to make it clear, except are rules and regulations "condominium instruments?" By definition in the Act, 2 (l) states that they are "all documents, including the declaration, bylaws and plats," but it does not state "limited to," so it could be argued that a board by resolution incorporated into the rules could make windows the unit owners' responsibility.
We will leave this semantic debate to the interpreters of the documents who have to advise the board. Until the legislature or an appellate court acts to define condominium instruments, we are merely left with an interpretation.
For the sake of this discussion, we will talk about replacing those windows and how to best pay for it. It is a fact of life that in vintage buildings one of the first things to deteriorate after the 20-year mark are the windows. The board must face the age-old question of, do we replace all of them at once to save money on something that has to be done eventually, or do them as needed.
Regardless of whether the owner is paying for the repair, it must be the condominium association's responsibility to have the design specifications drawn, the job competitively bid, and have legal counsel either draft or review the contracts. Then the decision can be made as to who or how it will be paid for.
If it is decided that all the windows in the building need to be replaced at once, then the board can levy a special assessment for the full amount of the job and each owner pays their respective share by percentage of ownership. Or, the board can replace the windows unit by unit and charge back the owner for the actual costs. A third method of course, is for the board to designate one or more contractors, and then leave it up to each owner to contract on a unit by unit basis to only use the association contractor(s), although this is not the preferred method.
The board could investigate a bank loan or even contractor financing, as an alternative, but this depends on the financial viability of the association, the amount needed, how many owners can afford to pay cash, etc.
When windows in older properties deteriorate, the answer is usually obvious. The bigger controversy usually arises with regard to newer windows that leak or thermal pane glass that clouds up. Many owners have an expectation that it is the association's responsibility regardless of what the law states. Clearly, if there is a leak, the board needs to investigate the source of the water because sometimes what appears to be obviously a window leak, is actually an exterior flaw that does become the association's responsibility. If it is the window itself, then it is a limited common element and based up on the Act, and/or the "condominium instruments," it becomes the responsibility of the owner. Then the board needs to merely deal with the hows and whys of the repair, and not who is going to pay for it.
Lastly, a prudent board, whether it is in the early stages of a new property or an older building, should have a line item in the reserves for windows so initial repairs can be funded while the board determines policy and how it will be reimbursed. When it comes to water infiltration, any delay can become disastrous.
• Jordan Shifrin is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at email@example.com. This column is not a substitute for consultation with legal counsel. Past columns can be read at www.ksnlaw.com.