Attorneys Jim Slowikowski and Mark Pearlstein responded to questions at a recent meeting of the Association of Condominium, Townhome and Homeowner Associations.

Q. In our high-rise, a plumbing leak from one unit caused damage in the unit below. Who is responsible?

A. This can be a tricky issue. If the leak was caused by the failure of a plumbing common element, the board should pay for the repairs. If the source is a limited common element, it depends on what is stated in the governing documents about responsibility.

If something malfunctioned in the person's unit above, he should be responsible for the cost. Boards can require unit owners to carry insurance covering this kind of liability.

Q. A portion of our garage floor was replaced but we don't think that the work meets the specifications. The contractor has been paid in entirety already. What can we do?

A. There should have been some hold-back to ensure the work was done properly. The contractor should get only a percentage of the fee until the work is completed. In your case, the ultimate recourse, if the contractor won't come back and remedy the defects, is to sue him.

Q.In our multi-story condo building, all units have a room for HVAC (heating, ventilating and air conditioning) equipment. One unit owner wants to have his moved to the roof. What's the policy on this?

A. A board doesn't even have the authority to allow placement on a common element. If it had approved the move and it had been completed, and another unit owner sued, a court could require removal. There is also the possibility that any roofing warranty would be voided depending on where the equipment was placed.

Q. Can a townhome association limit the number of persons residing in a unit?

A. You could probably put in your rules that any local ordinance restricting the number of residents in a unit applies. Many municipalities have such a statute.

There is often a problem in trying to enforce such a restriction because of the difficulty in proving who lives in a unit. Sometimes just addressing the issue to the owners (in rules or in a newsletter) may lead owners to comply with any restrictions.

Q.Can an association impose restrictions on weight, height and number of dogs that can be kept in a unit? Can certain types of dogs be excluded?

A. If your bylaws place no restrictions on weight, height or numbers, you can't pass a rule to accomplish that. You would have to amend the bylaws. You could probably require greater liability insurance on the part of unit owners who have generally aggressive breeds such as pit bulls.

Q.Is there a legal issue with both husband and wife (who co-own a unit) serving on the board simultaneously?

A. In condominiums, they can't. In a non-condo [associations], it's a matter of what's in the bylaws.

Q.Must the internal control recommendations of our annual audit be made available to unit owners for review?

A. Yes, they should go to the owners. There should be no secrets in associations.

Q. In a non-condo association, can homeowners see legal bills if a request to review books and records is filed?>

A. Owners are entitled to know what the expenditures of the association are, although not necessarily the content of any legal communications between the attorney and the board on pending litigation.

Q. When should an existing declaration or bylaws be rewritten?

A. If your documents are more than 10 years old, there have been so many changes in the law it would be a good time to rewrite them. You should probably also do it if you have adopted a lot of amendments.

Q. Our developer wants the unit owners to pay a fee to someone to appeal our property assessments. The developer still controls the association. Can he do that?

A. A developer will often hire an attorney to appeal assessments when the developer owns a lot of units. The only way a developer, however, can pass the cost on to the other unit owners is if the developer-controlled board passes a resolution authorizing the action. Owner-controlled boards have the power to do this and developer run boards have the same authority. Unit-owners can protest being charged if the developer doesn't go about the process in the legally correct way.

Free-lance writer David Mack can be reached by e-mail at speed14@urbancom.net.