In 2012 our rear sliding door and our neighbors needed repairs due to weather/exposure, the board consulted with an attorney who informed them that due to ambiguity in the wording of our by-laws the board if in agreement could pay for the replacement or repairs of doors. Since 1996 windows were always treated as Common Elements but due to the nature of this door/window they decided to get a legal opinion. They unanimously agreed to replace the doors based on the advice from the attorney, this was done in Nov 2012 at a cost of $4600 per unit. Fast forward to 2013 and a new board has been elected. The new board issued a resolution removing any ambiguity in the wording of the by laws, issued a notice stating that all doors and windows are now considered limited common elements and then informed myself and my neighbor due to bad legal advice we are to each reimburse the assoc $4600. My question is can this board retroactively and selectively (they are not going after any other unit owners that have had assoc paid work done to there windows/doors over the last 17 yrs) enforce the by laws they recently changed. We did no ask for new doors we merely inquired if they were our responsibility or the assoc and when they informed us that the assoc, based on legal advise they rec'd would replace them. If the board had informed us otherwise we would have chose to repair them at a much lesser cost. I'd appreciate any informed feed back you can offer. Our assoc consists of 40 units ( four ten unit/5 story buildings) in Chicago, IL.
1 Answer from Attorneys
It seems unfair. However if the board at the time made its interpretation and you did not like it, you did have legal rights, including the right to seek a declaratory judgment as to whether the provision was to be interpreted the way it was or should have been interpreted to help you. The problem is that filing a lawsuit probably would have cost more than the doors cost to replace, and the bad feelings that would have come with would have been an issue too. Today, you can try appealing to the board, and may have similar rights, but as to the 2012 stuff, you may only have a lawsuit for damages that may fail even though today under the revised language it has been made clear that the board should handle replacements. Often the problem is not the legal theory, it is the context: players, amounts in controversy, cost to litigate, and timing. I can not say without a significant amount of additional research whether you could file a declaratory judgment today on actions from a year ago. It would seem to me the better approach might be an owners' meeting where all of you can decide what's fair including some kind of reimbursement -- especially if all the doors are failing....or other elements are or may fail in the future.