Winterization Time

Winterization Time

Fall is my favorite season and for condominium trustees and property managers, it is the time of year to turn thoughts to snow and ice removal to make sure all condominiums are prepared for winter. While we renew snowplowing contracts, the following are a few more items to keep in mind.

Don’t cut corners and have a trustee winterize the unit. Have the property management or other properly insured company undertake the task so it can document the steps taken.

Parking

Parking is never a fun topic when snow and ice hits. As units may have sold or been rented in the intervening months from last winter, remind all owners and occupants of the condominium’s winter parking and snowplowing requirements and fines for failure to comply. Send a blast e-mail, include it on the condominium trust website and post it in a conspicuous common area. There will always be that one person who claims they didn't receive notice of the parking policy, but having sent the notice in numerous formats negates this argument.

Snowbirds and Vacant Units

All owners and occupants should also be reminded that heat in the unit shall be kept at a minimum of 55 degrees during colder months to ensure pipes do not freeze. Encourage “snowbird” owners to leave emergency contact information or to leave a unit key with a trustee or management company in case an emergency arises in their absence. Identify those units that have been abandoned or may be vacant due to death, divorce or foreclosure.

For vacant units, the condominium trust should first attempt to locate the owners and request that they either winterize or ensure that heat in the unit be maintained. Should the owner not be located or refuse to take any action, then the condominium trust will need to step in. If possible, turn off water to vacant units and secure windows and sliding doors. If a condominium has shared common water pipes, water should be turned off inside the unit and faucets opened to drain out as much water in the pipes as possible. Drain the water from any water heater tanks. If water to the unit cannot be turned off, then the condominium trust will need to have heat maintained in the unit and place the account in the name of the condominium trust. Vacant units should also be regularly inspected during the winter months to ensure heat remains at no less than 55 degrees and that no other issues have arisen, such as wildlife seeking shelter.

Unoccupied units are not only a concern during winter months due to damage from the cold, snow, ice and possible frozen pipes as water heaters can fail at any time of the year. Closed up units with no air conditioning during hot, humid summer months can cause mold growth; remaining garbage can be an invitation for rodents and insects; and vacant units can also be tempting for squatters and criminals.

At any time of year, unit owners go AWOL. While most are simply on vacation, others may be living somewhere else for health or employment reasons, and some may abandon their units altogether due to divorce, impending foreclosure or death.

Trustees often believe that the mortgage holder should take care of maintaining heat or winterization of vacant units. However, more often than not a bank will not take any action without specific written authorization from the unit owner for fear of entering into an occupied unit. Without such owner written authorization, the bank will always assume the property is occupied. If a bank has foreclosed on a unit, do not assume that the unit has necessarily been winterized without some form of confirmation from the bank or its own property manager or broker. In instances where the bank has not foreclosed, be aware that while winterizing a vacant unit will certainly protect the bank’s collateral, there is no obligation for the bank to do so. Even if the condominium trust notifies the bank of a unit’s occupancy status, it may still be unable to service a particular unit before colder weather arrives. Should the bank take no action at all, then the condominium trust will need to do so. It is much better to pay a minimum amount for heat as opposed to having a claim for substantial water damage denied.

We also find more units vacated due to the unit owner entering assisted living, rehab or a hospice facility, and family members failing to notify the condominium trust. While the unit owner is still obligated to maintain adequate heat in the unit, this may be the last thing on their mind due to a medical situation, especially for the elderly.

Insurance Issues

Have you ever taken a moment to read the exclusion provisions in your condominium master insurance policy? Especially those provisions as to water intrusion and maintenance of heat or winterization requirements - they can be downright frightening. The master insurance policy will dictate that the condominium trust undertake proactive action once it becomes aware of a hazardous condition on the premises. An unheated vacant unit qualifies as a hazard to both common areas and adjoining units. Failure to take action to secure and winterize a vacant unit will give the insurance company reason to deny coverage should a pipe freeze or burst. Don’t cut corners and have a trustee winterize the unit. Have the property management or other properly insured company undertake the task so it can document the steps taken.

While unit owners have the obligation under the condominium documents to maintain their units in good working order and take no action which would jeopardize the condominium trust’s insurance coverage, there is no guarantee that a unit owner will comply. An owner facing foreclosure may vacate the unit, angry over the property loss and not caring what happens to the unit or their neighbors in the aftermath. Some owners act under the mistaken assumption that their bank is now responsible for the unit and will take care of the winterization believing that the bank is now responsible for unit maintenance and should bear the expense of winterizing or maintaining heat.

In order to demonstrate “due diligence” under the master insurance policy, a condominium board should consider the following:

• Adopt a rule requiring owners to maintain heat in their units at no less than 55 degrees in colder months and provide sufficient air conditioning during the warmer months and to provide notice to the condominium trust of any extended absences;

• Send owners a yearly questionnaire requiring owner contact information and, if rented, information as to names and contact information of the current tenants. Follow-up with non-respondents by letter or door-to-door contact;

• When the condominium board has actual knowledge or suspicion of a vacant unit, send the owner a written demand letter at their last known address, informing them that under the owner maintenance provision in the Declaration of Trust, they must provide a written response within fifteen (15) days that the unit is being adequately maintained;

• Should the owner fail to respond, enter the unit under the emergency powers in the Declaration of Trust solely for the purpose of verifying heat, drain the hot water heater tank, and turn off the water inside the unit;

• If heat must be maintained due to the type of plumbing within the building, have the utility accounts placed in the name of the condominium trust, keep heat at a minimum of 55 degrees for preservation purposes and pay the ongoing costs;

• Regularly inspect vacant units throughout the year to ensure that no other issues have arisen – such as wildlife seeking shelter.

While utility expenses are chargeable to the unit owner’s account, they are not considered to be common expenses, and thus are not entitled to priority lien status. While a condominium board may not want to incur these additional expenses, it is mere pennies spent when one considers the costs of the alternatives: a pipe bursts and causes extensive water damage to the units below and results in those unit owners being displaced from their units for several months; garbage left behind causes not only a pungent building wide stench but also a rodent or insect infestation throughout the condominium, inconveniencing or temporarily displacing unit owners. Most unit owners still do not have individual HO-6 policies, so the time, extra expense and inconvenience of other owners will erupt tenfold when they discover that the mess could have been avoided had the condominium board simply put the utilities into its own name and paid them. It is much better to pay a minimum amount for heat, water or electric as opposed to facing the angry horde of unit owners when your claim for substantial water damage is denied.

Laura Brandow Condo Law Blog

If you have any need for legal services related to this article, or any similar matter, you can email Laura Brandow at lbrandow@mbmllc.com or contact any of our other attorneys at Moriarty Bielan and Malloy LLC at 781-817-4900 or info@mbmllc.com.

Laura Brandow