By: Harris B. Katz, Esq.

Q: The roofs in our condominium are over twenty years old and leaking. The board recently commissioned a reserve study and the engineer opined that the roof has exceeded its useful life. The board is refusing the replace the roofs. What can we do to force the board to replace the roofs?

H.H., Boca Raton

A: The board has the fiduciary duty to maintain, repair and replace the common elements. The roof is arguably the most important common element and roof leaks can range from minor to disastrous – but often expensive. This is a very fact specific analysis, but if the board has a professional opinion that the roofs have zero years remaining, the board could be breaching its duty to the members with every passing day.

Often, the decision to forego replacements is because of cost and the desire to avoid special assessments or reserve contributions. Although this is understandable, it is also a necessary part of owning property. The board needs to consider multiple funding issues such as whether loans are available, whether membership approval is required for certain options like special assessments, and the current balance of the reserve accounts.

My recommendation is to write a letter to the board to remind the board that the roof’s useful life has expired and remind the board of its fiduciary obligations. The simple fact is that if the condominium experiences catastrophic damage that could have been avoided by following the recommendations of the engineer and timely replacing a common element component, the association could be responsible for damages caused by the roof leak. Absent a change in board composition through election or recall, there is no direct mechanism to compel roof replacement, but you can take actions to protect your interests in the event the board continues to ignore the roof condition.

Harris B. Katz, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC. or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.