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Legalease
Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 14272
Experience:  13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
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Under Illinois law, does a condo association have a duty to

Resolved Question:

Under Illinois law, does a condo association have a duty to improve pipes and/or install a sewer backup prevention system so as to prevent recurrent flooding of an individual unit.  The bylaws define plumbing to be a common element and the sewer backup originates from the pipes that are common.   However, the pipes are not failing in their original design or function; they are just not designed to prevent sewer backup.

Submitted: 6 months ago.
Category: Real Estate Law
Expert:  Legalease replied 6 months ago.

Hello there

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Strangely enough, this is the third Illinois condo law question that I have reviewed today and I have been in and out of the Illinois condo statute. Unfortunately, there are no laws that govern the manner in which the condo board is to operate the condo units and common property -- the Condominium Act in Illinois (and all other states for that matter) simply gives a developer and/or a group of people the right to organize a condo form of self living and those laws give the developer / condo board the rights to put in place a master deed, rules and regulations and covenants for how the property is to be run (the board is permitted to adopt their own voting rights and the only time the voting rights set forth in the Illinois condo statute are applicable is if, for some reason, the board has not adopted voting rights and set those voting rights into the rules and regulations for the condo).

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However, all of this being said, there may be other legal reasons why you would have a case against the condo board for not correcting the flooding of your unit -- particularly if the flooding is from an entirely outside source (outside of the four walls of your condo unit -- because you are responsible for all maintenance of anything that is in the condo unit that you own, including any issues with electric, HVAC or plumbing -- the condo board is responsible for the maintenance of all common hallways and other common areas that the condo association owns around and between the units). So, if there are maintenance issues and items that the condo board has neglected that are within the common areas and are THEIR responsibility to maintain, upkeep and repair and the condo board / property manager is NOT keeping up with these issues (whether the problems are from normal wear and tear / deterioration or whether something happened to pipes, etc to cause these problems) and their negligence has caused or is causing water to back up into your unit then you are NOT responsible for those repairs and you have every right to apply to the condo board / property manager to get these items repaired in order to stop the flooding from the outside source.

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My suggestion to you at this point is to get a contractor and/or plumber into your unit so that you can get a written assessment of where the water is coming from and how much the issues are to repair and then so long as the source of the problem is not traced back to anything within your unit or anything that you may or may not have done regarding your own care and maintenance to the interior of your condo and the systems within the condo, then you should send a written letter with a copy of the contractor or plumbers assessment and demand that they repair the problems immediately or you will pursue further legal action over the matters. If they choose to ignore you and do nothing about the problem then my suggestion is that you contact a local attorney who has experience in condo law and in condo governance and get the attorney involved to write the board a threatening demand letter to have these matters taken care of ( a lawyer will write such a letter for a few hundred dollars and if the board responds then you have no need to take the matters any further). If the board still does not respond then you can contemplate a lawsuit against the board at that point to get them to do what you are paying them a monthly condo assessment to take care of. To find a local attorney who specializes in this area, you should contact your local county bar association (they are online) and use their attorney referral service -- they will be able to give you the names of several area lawyers who specialize in this type of law and then you can speak with a few of them and go from there.

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So, as I said, although the condo law does not specifically govern a situation like this, it is part of condo ownership that you are only responsible for damage within your four walls and common property / real estate law that if something from the common area (jointly owned condo property) or another property owner is traced as the source of your ultimate problem, then it is legal negligence for the condo board (or other owner, as the case may be) to permit the condition to continue and they are legally obligated to repair the problem and any and all damages that flow from that problem.

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I hope that all of this helps. Please let me know if you have any further questions on these matters and I am happy to answer them!! If you have no further questions, can you please press the 3rd, 4th or 5th smile face underneath this ANSWER box so I will be paid for my time. I am paid nothing unless you press a positive rating below. Pressing the 3rd, 4th or 5th smile face below will not cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time in assisting you this afternoon.

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MARY

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Customer: replied 6 months ago.

Thanks, XXXXX XXXXX did not really answer my question, which was whether the duty of the board to maintain common elements means that they have a duty to improve common elements so as to prevent recurrent floods or whether it only means that they have a duty to make sure that the existing pipes are maintained. I have already taken all the steps you suggest and am prepared to sue (I, myself am a litigation attorney and know how to write threatening letters or ghost write them for a friend of mine to send). I just need to know if, as a matter of law, the duty to maintain common elements is construed as a duty to take reasonable steps to prevent floods from originating from them or merely as to keep what is already there is a reasonably good condition. There is no question the two floods originated from a sewer backup passing through our pipes and that the pipes' original design would no longer be up to code if it were a new construction.

Expert:  Legalease replied 6 months ago.

Seth -

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Thanks for your response. I have actually been involved in several of these cases and the answer is a resounding YES -- they are bound to take all needed steps to make sure that there are no continued issues of flooding. It is not just a matter of maintenance -- if the system must be upgrading to repair these issues then they will have to put it into their budget and take care of it so that there are no flooding incidents into nearby units (particularly if the system is no longer up to code). All property owners are obligated to maintain and upgrade their properties to a point where there are no ongoing nuisance issues with adjoining properties (the real estate law of nuisance applies here -- when there is a condition in common areas or on the property of your neighbor that causes damages to your property, then the owner of the common areas or the other property is bound to correct those problems -- that was in real estate law in law school -- the law of NUISANCE - you will have to do some case law research and cases of adjoining and close by property owners suing their neighbors are also applicable here because the condo association IS an adjoining or close by property owner to you as the owner of the common elements). There is no way that you or any other owner suffering from flooding caused by something completely out of your control should have to suffer with this or pay for it. However, if they refuse to work these issues out with you, then you are most likely going to have to bring a civil lawsuit against them to get them to repair and upgrade the system and repair all of the damages that flow from it.

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MARY

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I hope that all of this helps. Please let me know if you have any further questions on these matters and I am happy to answer them!! If you have no further questions, can you please press the 3rd, 4th or 5th smile face underneath this ANSWER box so I will be paid for my time. I am paid nothing unless you press a positive rating below. Pressing the 3rd, 4th or 5th smile face below will not cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time in assisting you this afternoon.

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MARY

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Customer: replied 6 months ago.

Thanks so much. Are you aware of any precedent to support this that I can cite in a threatening letter?

Expert:  Legalease replied 6 months ago.

Seth -

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My suggestion is to try researching the law of Nuisance in Illinois -- I am sure you are going to come up with some articles and cases that will be useful. Unfortunately, the limitations of the website prevent us from doing significant research into case law in any one state and I do not believe there is anything in the statutes (including the condo statutes) that will help you here. Please note though, that another attorney here has agreed with my assessment so you are on the right track (my entire practice for 17 years has also been real estate law and situations similar to this). Condo associations and boards are very difficult to deal with and you still may end up having to actually file the lawsuit against them to get the needed repairs and upgrades.

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MARY

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Please press the 3rd, 4th or 5th smile face below so I will be paid for my time. I am not paid anything unless you press a positive rating below. Doing so will not cost you any additional money -- it simply acts as a trigger to Just Answer to pay me for my time. THANK YOU

Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 14272
Experience: 13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
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