Condominium Association Liability for Failing to Maintain Common Elements

Condominium Associations can be liable for claims by unit owners for the association’s failure to maintain the building’s common elements.

Last week an Illinois Appellate court ruled that a unit owner whom the condominium association sued for failing to pay assessments could offset the amount she owed by the condominium association’s failure to maintain the common elements.

In the case titled Spanish Court Two Condominium Association v. Lisa Carlson the condominium association filed suit against a unit owner for past due assessments.  The unit owner claimed that any amount she owed would be offset due to the association’s failure to maintain the roof.

The appellate court did not permit the unit owner to bring her claims for damages to her individual unit in the eviction suit.  The court reasoned that these did not directly relate to the condominium association’s claims for possession of the unit and past due assessments.  The unit owner was free to bring these claims for water damage to her unit caused by the leaking roof in a separate suit against the condominium association.

Since there are not many court decisions involving past due assessments the court applied the law relating to landlords and tenants.   Particularly, the court applied the principal of an implied warranty of habitability to the condominium association with respect to the condition of the common elements.

The court also held that the Declaration of Condominium and the By-Laws represent a contract between the condominium association and the unit owners.  Under this contract the unit owners promise to pay the association the assessments and the condominium association promises to maintain the common elements.

For condominium associations considering suing delinquent unit owners, they may wish to consider whether the unit owner will respond by counterclaiming that the association has failed to maintain the common elements.

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