Q: As an owner of a unit in a condominium project, do I have to worry about being held liable for my tenant’s “trip and fall” accident that may occur due to an uneven walkway in the common elements?
A: The common elements of condominium developments are usually not under a single co-owner’s control unless they are designated limited common elements. For common elements that are not limited common elements, i.e., general common elements that everyone in the development has the right to use, the board of directors of the condominium association makes decisions regarding those general common element repairs and exercises control over those general common elements. This does not necessarily mean that you will not be dragged into a lawsuit by your injured lessee who decides to sue you as well as the association, but it may be difficult in most cases to prove that you had any control over those general common elements. That said, it is always a good idea to bring to the board’s attention any general common element repairs that should be made. Finally, note that with respect to limited common elements, sometimes the co-owner has the responsibility for maintenance, repair and replacement of certain limited common elements under the condominium master deed; in that event, you could be held liable for failure to properly maintain or repair the limited common element. Make sure there is sufficient insurance coverage to cover all contingencies.
Q: I own an apartment complex. Sometimes, I’m not sure whether I should make certain repairs to the common area. What are my legal responsibilities?
A: It would be best to consult with your attorney regarding specific questions concerning repair requirements. However, a recent unpublished appellate court decision is instructive in this regard – Tremper v. Westland Colonia Village Apartments (MiLW No. 08-92024). The decision confirmed that the applicable statute, MCL 554.139, only requires that common area be “fit for the use intended” in contrast with the responsibilities in connection with “the premises”, i.e. the separately leased residence, where the lessor has a higher obligation to keep the premises “in reasonable repair” and in compliance with applicable health and safety laws. In this case, a common area sidewalk had a section of pavement that was one inch higher than another section, which allegedly caused a trip and fall accident. The court ruled in favor of the defendant apartment complex owner, stating that there was no question that the sidewalk was fit for its intended purpose; however, it is interesting to note that a dissent was filed by one judge stating that this question was for a jury to decide, not the court.
The foregoing is informational in nature and is not intended as legal advice. Consult an attorney for legal advice on these subjects.