Q&A: Who's Responsible for Repair?

Q I live in a townhouse development consisting of 120 units. The board is the management team and the association is financially responsible for outside maintenance. In 2009, there was work done on the sidewalks and stoops, and more work is coming. The board accepted this responsibility as written in the bylaws. A couple weeks ago, however, we received this information in our community newsletter: “Stoops and sidewalks will be repaired/restored using flagstones; if homeowners want the riser to also be faced with the flagstone, they will have to pay for that part of the work.”

The work done in 2009, which included some risers being faced with flagstone, was not paid for by the homeowners. Could this be considered a violation of the bylaws? The announcement came in the newsletter and was not the result of open discussion.

—Concrete Concerns

A “In a housing development like this, the respective rights and obligations of owners and the board are governed by the bylaws and declaration (if a condominium or homeowners association), or by the bylaws and proprietary lease (if a cooperative),” says Aaron Shmulewitz, Esq., of the law firm of Belkin Burden Wenig & Goldman, LLP in Manhattan. “Therefore, a precise answer to who is responsible for replacement of risers would depend on the provisions of the particular governing documents for this development.

“However, assuming that such documents are fairly standard, it would be fairly typical for replacement of risers to be the responsibility of the individual owners. If that is, in fact, the case, the board would be within its authority to allow replacement of risers with flagstone components but at the cost and expense of the individual owners. Even if the governing documents here provide that replacement of risers is the responsibility of the board, the board would be within its authority to undertake to replace risers with basic/standard components, and to give individual owners the option of installing the upgraded flagstone components at their own individual cost. In either case, the board would be acting under the business judgment rule.”

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