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Washington DC Attorneys

8/26/2016: In a crisis, condo board needs its own attorney

By Benny L. Kass

August 26, 2016

My sister and her husband own a condo in a development where a deck recently collapsed. The resident on the deck suffered a broken back. Now there is conflicting information about what repairs need to be made to all the decks.

The condo association has a board. Apparently, the residents were told that the city had condemned all the decks and that they all had to be replaced. But later, the city said it had not taken that position. The property management association hired its own engineers to evaluate the decks, and they said all the decks need to be replaced. The board relies on the attorney who represents the management association.

Three questions: One, should the board hire its own attorney to represent the condo owners, since relying on the property manager’s attorney might be a conflict of interest? Two, should the board (or the individual owners) hire its own engineering firm to evaluate the decks? Many of the residents think that not all the decks need to be replaced or that they could be repaired without replacing them. Three, can you recommend a book on associations and their dealing with property managers? — Neil

Your last question is the easiest. Go to the Community Associations Institute (caionline.org), and you will find a wealth of information, including books on every single topic you can think of.

As to the first question: Absolutely, the board should hire its own attorney. You cannot rely on attorneys for the property manager; they do not represent the association, and an owner probably cannot claim that communications with them are covered by attorneyclient privilege. Although they may be providing correct information, the board still must have its own counsel.

As to the second question: Yes, the board should hire its own engineering people to assess every deck. And if work must be done, management must get at least three bids. The board — and not management — must make the decision as to which company to use.

It is puzzling that the residents were told that all decks must be replaced when the city later denied that statement. Does management somehow get a kickback from the contractors?

There is yet another problem, probably more significant than replacement of the decks: What is the board doing about the injury to the unit owner?

Again, that is something the association’s attorney — not management — must handle, because the association may be sued as a result of the injury.

I was just informed that our condo board is upgrading our cable TV and Internet access. The Internet upgrade will increase my costs by about $35 a month. Also, my current Internet provider may charge me a cancellation fee.

Can the board add the Internet charges as part of my assessment? I believe this is a nonessential service. — Phyllis

Many associations contract with a communications company such as Verizon or Comcast for what is known as a bulk buy, and the cable/Internet company provides service to all owners at a bulk rate. The board has the authority to charge all owners as a common expense. The board cannot, however, preclude your having your own service provider. In some contracts, owners have the right to opt out; however, the bulk contract will then be more expensive because the service provider does not serve all units.

It does not seem fair, but community living is democracy at its best and at its worst. I often am reminded of a unit owner who said, "I live on the first floor and never use the elevator and thus do not want to pay for its maintenance and upkeep."

Too bad. If you don’t like it, mount a campaign and "throw the rascals out" of office. There are provisions in your legal documents for recalling a board member.

Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. Send questions to blkass@kmklawyers.com.

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