Legal Question in Real Estate Law in Wisconsin
I recently purchased a foreclosed condo. Offer accepted in Feb. 2009, closing was April 2009. I hired an inspector to check everything out. In March, my realtor and I were there. We realized that the basement wall leaked. Drywall was fine but the two year old carpeting was saturated with water. I contacted the condo.'s management company. At the time, I thought it would be taken care of my the Condominium Association because I had a copy of the condo.'s Declaration, By-laws, and Rules. The rules said it would be covered. The leaking wall was finally fixed six months later. We tore out the carpeting because it became moldy. Now the problem.
The By-laws state, "The Owner of each Unit shall furnish at his own expense, and be responsible for all maintenance, repairs and replacement of interior surfaces of each Unit together with utility lines, mechanical equipment and fixtures which serve only one Unit, and such fixtures and equipment which are located within one Unit; and glass surfaces, screens, doors,windows, door and window hardware appurtenant in each Unit. The expense of such maintenance,repairs and replacement shall be borne solely by each such Owner." Written in 1990
The Rules and Regulations state, "All interior maintenance is the responsibility of each homeowner. The Association does not provide services or pay for services to repair any damage inside a unit except those caused by an external problem such as a leak in the roof. This does not include such problems that are caused by the individual Unit Owner such as an outdoor frozen faucet." Revised 1994
The condo board told me that the By-laws written in 1990 supersede the Rules and Regulations written in 1994 and that were going to eliminate that clause from the Rules because it was confusing.They will replace the drywall that was removed to find the leak, but, I am responsible for paying for the replacement of the carpeting in my basement. How do I determine if the By-laws supercede the rules and do I have any recourse? Thanks for your time.
1 Answer from Attorneys
No lawyer could answer your question without reviewing a complete set of the bylaws, declarations and rules and copies of the minutes, notices and records of all meetings. Declarations, rules and bylaws can be changed, but only according to the rules contained therein setting forth the rights of owners to participate in the process (or even potentially veto it, if they have that power in the declaration). The superseding rules therefore either may or may not apply to you, a new purchaser. The better practice would always be for the association to record any changes with the register of deeds office in order to put new purchasers on notice. The fact that this was apparently not done here may provide you with a valid objection. Also, the fact that the association specifically covers roof leaks might help you in court if you sued over the basement leak. The best idea of all, however, is to purchase insurance which covers this sort of thing. Since it involves covering property which is below grade, it would be a special rider (most homeowner�s insurance covers virtually nothing below grade). That would be expensive but may be worthwhile if it spares you from the need to sue your own COA (condo owners' association). One of the main problems with suing your own association is that you will be paying the legal bills of both sides of the lawsuit; the association simply adds theirs to association dues, a portion of which they can pass along to you (to say nothing of the neighbor relations problems you could experience due to such a lawsuit) And, the association's entire legal bill may come to you if you lose the lawsuit. Finally, yet another option might be sue make a claim against your home inspector for not detecting the problem. Many inspectors, however, have disclaimers in their contracts exempting them from liability for issues hidden by coverings such as drywall, since a truly adequate inspection would require the drywall to be removed. My response in this public web forum is intended for public educational purposes only and is not intended to create an attorney client relationship between us.
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