Q. We live in a 200-unit condo. The building changes the filters in the convectors twice a year, but decided not to change them due to COVID. It’s now been over a year since they were changed, and if we turn on the heat, dust and mold pours out into our units. We asked the building to please clean out the convectors so we can use the heat, but they refused, again citing the pandemic. Do we have legal recourse?
—Seeking Clean Heat
A. “The first step in evaluating this type of scenario is to verify whether, under the condominium association’s declaration and bylaws, read in conjunction with Sections 2 and 4.1(a) of the Illinois Condominium Property Act, the association is responsible for handling the maintenance of this particular heating system component,” says Scott A. Rosenlund, founding shareholder of Rosenlund Legal, P.C., in Chicago. “In many instances, unit owners are responsible for—or perhaps have the option of individually maintaining—heating system components exclusively serving their units. Based on the association’s past practices, this analysis will presume classification of the component as a common element and association responsibility for upkeep of the component.
“Under Section 18.4 of the Illinois Condominium Property Act, a condominium board has a fiduciary duty to reasonably provide for the proper maintenance, repair, and replacement of the common elements. A board has a significant degree of discretion in making determinations as to the frequency, timing, and methods of maintenance work, so long as these decisions are made with appropriate diligence and are based on reasonable business considerations.
“In this case, depending on various factors related to the COVID-19 pandemic such as the possible reluctance of the association and its membership to having contractors enter units in non-emergency situations, it might be plausible that a limited degree of delay by the association in having the work performed was reasonable under the particular circumstances. On the other hand, it would not be reasonable to indefinitely subject unit owners to the choice of either enduring significant mold and dust inside their units or being deprived of heat, even during the pandemic.
“As for how the unit owners can pursue resolution of the issue, presuming that the unit owners simply completing the work themselves is not a realistic and prudent option, the unit owners could present their concerns to the association in writing and request proper upkeep of the heating system without additional delay. If the association persists in its refusal to have the work performed and does not offer a legitimate justification for this decision, the unit owners could file a lawsuit claiming a breach of fiduciary duty by the board members and/or seeking a court order requiring the association to have the work completed. It also remains possible that the failure to provide adequate heat constitutes a municipal code violation and that the unit owners could report the violation to the municipality. Finally, if multiple unit owners share the same concerns about the quality of the board’s performance, a group of unit owners could initiate board removal efforts and/or make a concerted effort to elect new board members at the next board election.”