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Association asked to add more insulation

Q. My unit always seems cold to me in the winter. I requested the association to install additional insulation in the exterior walls behind the drywall of my unit. The area in question is part of the common elements. The association hired an engineer, who said the current insulation meets and exceeds the building code, and is performing its function. The engineer also stated that I keep the heat in my unit set too low. I am on a fixed income and don't want to pay a higher utility bill, and I think the better solution would be to install more insulation. Who would be responsible to install the additional insulation, since it is located in the common elements?

A. Here, given the opinion of the engineer, the common element insulation is performing its function and the association does not have an obligation to install additional insulation. Under these circumstances, an owner who wants to add insulation to the common elements located between the perimeter wall of a unit and the exterior wall of the building would have to obtain approval from the board of managers. The unit owner, and not the board, would be responsible for the cost to install the additional insulation if the request is approved by the board.

Q. Mold has formed on the interior walls of the living room of my condominium. I run several humidifiers in my unit for health reasons. I contend that the mold forms due to water intrusion from the common elements. The association hired an engineer to investigate my claim. The engineer conducted tests and concluded there is no water intrusion into the unit from an external source, that the common elements are fine and that the mold is forming because of my over humidification of the unit and dirty humidifiers. Who is responsible to repair the damaged drywall?

A. A very high humidity can provide a good environment for viruses and bacteria, and it promotes the growth of mold, which can cause allergies in sensitive people.

The drywall here is a common element. Normally, the association would be responsible for maintenance, repair and replacement of the common element.

However, the typical condominium declaration states that the cost of damage to the common elements caused by the intentional act or negligence of an owner can be charged to the owner. So, the association would perform the work of repairing or replacing the drywall to the primer coat, and could charge that cost to you. This is based on the engineer's conclusion that the mold is a result of your over humidification of the unit and the dirty humidifiers. I assume the damage would not be covered by insurance, but that is an avenue that could be explored.

Q. I moved into a condominium about six months ago and I have discovered the assessment increases have been allocated evenly to all of the units, rather than based on the percentage of ownership assigned to the units. What should the board do here, and are owners who overpaid their assessments entitled to a refund?

A. The board should immediately start to allocate and collect assessments going forward based on each unit's percentage of ownership in the common elements. Owners who voluntarily paid an assessment that later proved to be calculated incorrectly may not generally seek a refund from the association. The voluntary payment doctrine provides that a person who voluntarily makes a payment of an incorrect amount may not seek a refund, unless the payment was made "under protest." The protest had to have been made on the check or in a separate writing to the association that accompanies the payment.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. 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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