On March 14th the Massachusetts Supreme Judicial Court, the State’s highest court, rendered a decision which this writer sees as a fighting extension of the grounds for liability for community associations -  O’Brien v. Christensen.  While the Court makes but a passing reference to the fact that it has not examined whether any special rule should apply because the case involved a condominium since none of the parties raised the issue, in actuality the Court’s reasoning significantly impacts community associations. 

            The case itself is fairly straight forward.  The condominium is a four story building with commercial units on the first floor and nine residential units on the second through fourth floors.  Across the rear of the building were wooden porches.  These porches had deteriorated to the point that substantial repairs were necessary.  The unit owner organization hired a licensed contractor to repair them.  Unfortunately, the method by which the contractor secured the railings was inadequate and two tenants fell when the railing gave way,  causing serious injuries.  The central issue before the Court was whether the Association was liable where an independent contractor’s negligence caused the injury.  The Association argued that unless it was negligent in hiring a “qualified” contractor it should have no liability.  The Plaintiffs pressed the Court to adopt a developing rule that holds the operator of real estate liable for the negligent acts of independent contractors.

            Interestingly, the Court held that it need not adopt this “new” theory . However, the Court also held that the Association’s argument failed to shield it for it construed the standard By-Law provision making the Association “responsible for the proper maintenance and repair of the common elements” as creating a contractual obligation on the part of the Association to ensure that the common elements remained in a constant state of good repair. 

            Whether this conclusion by the Court is soundly arrived at is not for debate in this article.  As noted, this writer finds this conclusion most disturbing.  Similarly, one of the five Justices hearing the case expressed a strong dissent.  In both of our views the language in the By-Laws created no more than a general duty to maintain the common elements - a duty imposed both by the Massachusetts Condominium Act and common law since it is the Association which controls the common elements.  Beyond that standard negligence principles should be applied.  The problem, it seems, stems very much from the Court’s failure to recognize that unique composition of a condominium - a point exemplified by the Court’s description of the Association as a “real estate trust”.

            Hopefully in subsequent causes this aberration can be confined and narrowed.  For the moment, however, it stands as the law.  Thus, Boards must become ever more diligent in providing for the “proper maintenance and repair of the common elements”.  They must also, as often suggested by this writer, ensure that adequate liability insurance is maintained. This point cannot now be ignored. Boards should consult with their insurance agents, managers and attorneys to determine if and to what level they should increase their liability coverage.