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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 89656
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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Massachusetts Gen. laws severely limit the Board of a condominium

Resolved Question:

Massachusetts Gen. laws severely limit the Board of a condominium when it comes to improvements to the common area as opposed to repairs/maintenance, because if the intended action is an improvement, it requires 75% approval of the members of the Association. Unfortunately, Massachusetts has not defined "improvement".
The shingles on the roofs of our 39 units (13 clusters, 3 units/cluster)are failing prematurely after only 12 years. An independent consultant has recommended replacement of all roofs. The existing roof shingles are 3 tab 25/30 year shingles. Given the problems we have, the Board wants a system guarantee (labor and material guarantee) on the replacement installation, but to get that requires an upgrade of the shingles to 50 year architectural shingles. For the size of our Association, the upgrade would cost considerably more (50 year architectural shingles would cost about $50 per 100 ft.² more than the 3 tab shingles). However, in the context of the entire replacement cost, the Board views this additional cost as a reasonable insurance premium for the system guarantee.
Questions (Respondents should be MA attorneys only, please)
1. Is this contemplated action maintenance or is it an improvement?
2. Is their MA case law to support your opinion?
3. If not case law, is there other evidence to support your opinion?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Section 183A Section 18, states if less than 75% of the owners do not approve an improvement to a common area then only those who approve of it have to pay for it. However, the same is not true for a repair.

There difference here is the shingles being in disrepair need to be maintained and replaced, which is maintenance and not improvement, since "replacement" of something, even though it is upgrading the shingles, is maintenance. See: Fazio v. Trs. of River House Condo. Trust (Mass. App., 2012) (where they held replacement of trees with different types of trees was still maintenance). Here, like the trees you are replacing shingles that need to be fixed, with a better type of shingle, but they still need to be replaced. And thus still maintenance.



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Customer: replied 1 year ago.

Thanks for the reply. In this case, replacing the shingles with 50 yr architecturals will cost $50,000 to $75,000 more than replacing with new 30 yr 3 tab shingles. Does that change your opinion? it seems that additional cost vs replacing like kind might/should affect the maintenance/improvement decision? do you practice in MA? Thanks.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

The fact that they are replacing something that is in need of repair with a better quality thing does not transform it into an improvement. If shingles are failing, they have a right to make repairs with better materials and that does not make it into an improvement. If your board is spending your money in a manner you are displeased with, then you need to review your bylaws about how to file an objection to the board's actions or seek to remove the board, but legally it is still a maintenance/repair if the shingles are failing.

I do practice in MA and several other states as well.

This is no different than your windows breaking or failing and instead of replacing them with single pane glass you decide to go with double pane glass. The fact is they still have to be replaced and the fact you choose just a better quality does not mean you converted your repairs/maintenance to an improvement.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 89656
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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