Q&A: Defining Maintenance Responsibilities

My question relates to the maintenance responsibilities of a unit owner versus the board’s responsibilities. Recently I had an animal crawl into my air conditioner and die. Gross as that sounds, I know, it now smells, and there are maggots living and breeding within the A/C unit. The managing agent and the board are not claiming responsibility. My managing agent says that he is neither responsible for cleanup nor for sanitizing the unit. I explained that it could have come from the trees outside, or maybe there are holes in the wall where animals can get in. Who is responsible for this whole mess? They're incredibly slow to get this taken care of, and I'm worried about the health implications. 

                     —Stuck in Streeterville

“Generally, an owner’s obligation regarding their in-unit appliances will be defined in each association's declaration,” says Attorney James R. Stevens, a partner with the Chicago-based law firm of Tressler, LLP.

“Most declarations—though there are some outliers—will define the ducts, flues, and appliances serving the HVAC for a particular unit as an owner maintenance item, be they either limited common elements or in-unit elements.  

“This usually means that an owner is responsible for the maintenance and repair of their own unit appliances, ducts, and flues. Different declarations may define this as an owner responsibility to repair and maintain or as an owner responsibility to pay for the repair and maintenance carried out by the association. Without seeing the particular covenants that govern this property, there is no way to provide a correct opinion on this issue.  

“However, if the declaration provides that owners are responsible for maintaining their own in-unit elements, then the maintenance of the HVAC and removal of the unfortunate creature would be an owner responsibility. It is unlikely that the fact that the creature came from the outside or from the association-controlled elements would be the association's responsibility. 

“If there are holes in the exterior caused by lacking maintenance, this may be a different issue, but the immediate repair responsibility for in-unit items would be an owner's responsibility to pay.  This may be a different answer if the HVAC is association-maintained, but there's no indication from the question that this is the case. Owners generally should be quick to repair any items in their in-unit areas that could cause a health concern to avoid worsening the impact of that concern in the future.”           

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