February 21, 2004
Ask O&H
Each month we answer legal related questions submitted from our readers.
Q: A homeowner, upon pulling up carpet in his upper unit, discovered serious cracks in the concrete sound/fire barrier floor which must be replaced prior to installing new carpet. Is this considered a structural problem that the association should be responsible for or is it a homeowner issue?
A: The answers to allocating maintenance responsiblility are always document specific. The fact that the area with problems is a structural element does not necessarily mean that it is the maintenance responsibility of the association. However, in most condominiums, the units are defined as the air space with the boundaries including the unfinished surfaces of the floors, walls and ceilings. In condominiums the association generally maintains the common elements and the owners maintain the units and perhaps portions of the limited common elements. Assuming a condominium with these definitions and allocations, the concrete subfloor would be a common element, thus the maintenence responsibility of the association.
Q: Are on-site, employee managers exempt from debt-collection standards? Is an HOA liable if its employee or manager violates statutes?
A: The Federal and Colorado Fair-Debt-Collection-Practices Acts regulate third-party debt collectors, not individuals or businesses engaged in collecting debts owed to themselves. Generally, a manager acting as agent for, or an employee of an incorporated community association is not regulated by those Acts. Collection agencies and even law firms engaged in collecting debts for community associations are subject to the Acts and may be responsible to pay actual damages and monetary penalties for violations. Broader questions of "vicarious liability" of a corporation for employees' acts are fact-specific and subject to an extensive body of law.
* Please email or fax your questions with your name and contact information to: QAcolumnist@ortenhindman.com or 303.432.0999. Due to the volume of questions received, we cannot guarantee an answer.
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