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posted: 12/15/2013 1:00 AM

Leaking roof pits unit owners versus association

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Q. I have a question about the responsibilities of our homeowners association vs. those expected of us. We contacted our association after finding the roof is leaking in our townhouse.

They told us they would have to come into our unit and tear up the drywall and the ceiling to find where the leak is coming from in the roof. They told us we would be responsible for any cost to repair the drywall and ceiling after they are done.

We realize that if we put a hole in a wall, we are responsible to repair it. But if they tear up the room so the association can repair "their" roof, why do we have to pay for the repair of the room?

We argued that it is "their" leak and that the roof is a common element that the association is responsible to maintain and repair.

Now they are saying they are getting a court order to "make us" let them come in and tear up the room and that the court order will make us responsible for replacing any damage they do. Is this legal?

A. My first thought is do you own a townhouse or a condominium? Townhomes are essentially single-family attached homes. With townhouse ownership, you own the roof, the floors, all interior walls and half of any shared walls. You have personal ownership of the structure. In condominium ownership, all you own personally is the airspace within your unit. The structure is jointly owned with the other members of the association.

So, if you own a townhouse, it would often be your responsibility to repair the roof. However, you are indicating the association is taking responsibility for the roof, which tells me either you own a condominium (some do look like townhouses) or you own a townhouse with provisions in the declaration that provide that roofs are common elements, which would make the association responsible for repairs and maintenance. The board has a duty to repair and maintain the common elements.

Let us presume the association is correctly taking responsibility for the repair. As to who is then responsible for the ancillary damage caused by the roof repair, we must look to the association documents, which may or may not specifically address this issue. If the issue is specifically addressed in the documents, case closed. If not, I would, at least at the onset, take the position you are taking, which is the association should be responsible for the damage caused to your property while repairing the roof.

Unfortunately, as I have stated numerous times in the past, engaging your association in a legal battle is a bad idea far more often than not. One, they generally have more money than you and it's never a good idea to get into a legal battle with someone in a far greater financial situation. And two, you will not only be paying your attorney to do battle, if you lose, you will probably also be responsible for the association's legal fees, which could be substantial.

So, here's my suggestion. Check the declaration and any other relevant association documents to determine if this specific issue is addressed. If it is, that will dictate responsibility for these additional repairs. If not, contact the board members, either personally or through a board meeting and attempt to negotiate a resolution. Perhaps the two parties split the cost of these additional repairs. Although you will absorb some of the cost, this will most likely be a better outcome than what will result from litigation, plus you will get the benefit of a far quicker resolution.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tdr100@hotmail.com or call (847) 359-8983.

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