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KASS: Condo board waited over weekend to fix A/C

Q:     Our condo association has central air and heat and needs to be turned over twice a year from one to the other. Each unit has controls over the flow of air and temp it sets in their unit via an individual fan/coil cooling system. The temp of the cold air from the vents should be 59-61 degrees when working properly, it jumps up to 77-80+ degrees when it’s not.
We’ve had no problems with the heat. However during the summers, we’ve experienced various issues with our air conditioning system- belts or pumps, electronics, etc. The board decided to evaluate repairs and service call needs on a case by case basis. So this past weekend when our system malfunctioned on Friday afternoon, I notified the board right away. They sent a note out late Saturday to owners that they decided to wait until Monday to call for service because it is less expensive and didn’t want to pay time and a half. This however comes when it is over 80 degrees and my unit (and probably most others) have reached temps of 80 or higher inside. For me it is very uncomfortable, causes headaches and nausea among other ailments. (I’m only in my mid 40s).

What can be done to force the board to address repairs of this nature quicker to keep owners comfortable in their units? What responsibility does a board have when it comes to providing air conditioning from a common element into the units? Bill.


A:   Bill, it is not a question of the responsibility to provide air conditioning, but it is a question of the board’s obligation to make sure that the health and welfare of the unit owners is not being harmed.

First, let me state up front that if I were in your hot shoes over that weekend, I would have contacted an HVAC company and have them make the corrections at my cost. Then I would have demanded the association reimburse me.

However, if access to the common elements was required, I would have considered complaining to the local government health department.

But to your question: if you were to take the association to court, I think a judge would laugh if a board member said: “Your Honor, we did not want to spend money on Saturday rates, so we let the unit owners suffer over that long hot weekend.”

Boards often try to rely on what is called the “business judgment rule” –namely that courts will not challenge decisions made by voluntary boards of directors, even if they made a mistake. However, there are exceptions to this rule, and one is where the board’s action (or inaction) is not consistent with public policy.

And letting unit owners suffer in the heat to me is a violation of public policy. I would try to get a number of other owners to join together, retain a local attorney, and let her pursue all available avenues.





Q:       I am considering creating a personal trust in my name, with me as the sole trustee. My condo would be the largest asset of the trust. I am not asking for any legal advice. Can you offer the pros and cons for anyone considering creating a personal trust that includes major personal tangible assets such as a home/condo?   Name withheld on request.

A:     You are not asking for legal advice, so I won’t give you any. However, I will give you some practical advice: please see a local attorney as well as your financial advisor to determine if you really need to create a revocable trust. You may be told that you can accomplish your goals by just having a well-drafted, current last will and testament.

However, since you asked:

The Pros. You may avoid probate (See con below – if you have property in more than one state, a trust might make sense because otherwise you would need to have what is called “ancillary probate” in all states where your property is located). One more pro: if you are concerned about privacy, creating a trust will make sure that nosy neighbors can’t pry into your affairs.

The Cons: Contrary to popular belief, there are no tax savings if you create a trust. But perhaps the biggest negative is that to make sure your estate will not have to be probated, you have to put every asset you own into the trust. People often forget that, and their heirs still have to go to the probate court.

There are other pros and cons, but let your professionals respond after they have a complete understanding of your financial status.

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