What Happens When Your Condominium Association Doesn't Maintain the Common Elements of the Condominium?

What Happens When Your Condominium Association Doesn't Maintain the Common Elements of the Condominium?

Bob Dailey McGrath, North, Mullin & Kratz 1602 Dodge Street, #3700 Omaha, NE 68102 rdailey@mcgrathnorth.com (402) 633-6899



What Happens When Your Condominium Association Doesn't Maintain the Common Elements of the Condominium?

An Omaha condominium unit owner says that she has been paying assessments for years, but despite that, the Condominium Association doesn’t have any funds to make repairs to the common elements of the condominium. In one lawsuit filed in Omaha in 2019, the Condominium Association told the owner that it didn’t have funds to make repairs to the foundation and exterior walls of the condominium. Despite the fact that the owner had been paying assessments for years.  Other owners had also been paying those assessments, and this repair work was not being done.

This is a very typical situation. Some Condominium Association directors refuse to permit assessments to increase as needed to conduct ordinary and long-term repairs.  This results in diminishing values for the entire property. Even though an owner might maintain his or her unit in good condition, the common elements of the condominium are not maintained and deteriorate. As a result, the value of all condominium units plummet.

How can a condominium unit owner force the Board of the Condominium Association to conduct these repairs and increase assessments so that there are funds to make those repairs? The answer lies both in the Nebraska Condominium Act and the Nebraska Non-Profit Corporation Act.

Pursuant to the Nebraska Condominium Act, the Condominium Association, and the Board of the Association, are responsible for the maintenance, repair, and replacement of the common elements.

Pursuant to the Nebraska Non-Profit Corporation Act, a director of a non-profit corporation (and a Condominium Association is a non-profit corporation) must:

  1. Discharge his or her duties in good faith;
  2. With the care an ordinarily prudent person would exercise; and
  3. In a manner he or she reasonably believes to be in the best interest of the corporation (that is, the Condominium Association).

As a result, the failure of the Board of Directors to conduct these repairs, and keep assessments high enough to conduct such repairs, violates all three of these requirements. By failing to conduct the repairs, and to save sufficient funds to conduct such repairs, the Directors of the Condominium Association will be personally liable for any damage (including reduction in value) caused by the failure to conduct such repairs.

Therefore, an owner, whether on the Board or not, should notify the Board of the Condominium Association that it is obligated to maintain the common areas and have assessments high enough to fund such repairs. If there is no response from the Board, the owner can sue the Board for failure to comply with the Nebraska Condominium Act and the Nebraska Non-Profit Corporation Act. That owner would sue the Board members personally for the loss in value of the owner’s condominium unit.

The information in this legal guide is for educational purposes only.  It is not legal advice or a substitute for legal advice by a lawyer.  If you want legal advice, you should contact a lawyer licensed to practice law in Nebraska.

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