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posted: 1/29/2014 11:32 AM

Vacant unit causes damage, leaves liability mess

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Q. A second floor unit in our condominium association is owned by an off-site investor. The unit is managed for the off-site owner by a rental agent. The unit was vacant during the recent cold spell, and a heater water line burst when the furnace wasn't able to turn on because the batteries in the thermostat in the unit were dead.

The unit owners below have sustained damage to their ceiling, some carpeting, and there has been moisture buildup in the insulation inside the walls causing extreme inside humidity. If the unit were occupied, or if someone checked in on the vacant unit, this damage would not have occurred. Can a third party, like a rental management firm, be responsible to pay for the damage caused by the failure to change the batteries in the thermostat?

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A. The association's issue would generally be with the owner of the second floor unit, not with the owner's agent. That said, the damage here likely triggered insurance for the association, the owner of the unit with the failed thermostat, and the damaged owner. Therefore, the claim should be handled by the association like any other claim that is covered by the association's property insurance.

The board has three options with respect to the deductible portion of the association's property insurance in the case of a claim for damage to a unit or the common elements. The board may 1) pay the deductible amount as a common expense, or 2) after notice and an opportunity for a hearing to the owner, assess the deductible amount against the owner who caused the damage or from whose unit the damage or cause of loss originated, or 3) require the unit owners of the units affected to pay the deductible amount.

In this situation, since the board contends that the damage occurred because of the owner's agent's negligence, the second option would be appropriate. This would permit the association to charge the deductible portion of its insurance to the off-site owner. Depending on the responsibility of the rental agent to the off-site owner, the off-site owner may be able to seek reimbursement from his or her rental agent.

Q. Our association is receiving more and more complaints about secondhand smoke entering units from other units. What can be done about this?

A. The statutes that ban smoking in certain locations of property don't extend to individual units. That said, the association's governing documents can offer relief if they include the typical language that prohibits residents from engaging in noxious or offensive conduct or conduct that may be an annoyance to other residents. Tobacco smoke that migrates from one unit to the common areas or to other units can trigger the application of such a restriction. This would permit the board to take enforcement action against the offending resident.

The association can also address the specific issue of smoking through its own rules. Rules could provide that smoke from tobacco use within an individual unit may not migrate into any other unit or the common areas.

And more and more associations are considering a ban on smoking in the individual units (and without any grandfather provision). Such an aggressive ban will likely require an amendment to the declaration (requiring owner approval), and not simply a rule adopted by the board. However, no Illinois appellate level court has rendered an opinion on the issue of banning smoking in units by way of rule (or amendment), so any challenge would be a case of first impression in Illinois.

It is the board's duty and obligation to promptly address a resident's complaint that smoke is entering the common elements and/or other units from another unit. The board should attempt to resolve such a matter incrementally and amicably. Although a total ban on smoking is a drastic solution, it is a restriction that will likely become more commonplace as the years go on.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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