Incidental damages are damages that are caused by associations to portions of buildings that unit owners are required to maintain. The most common example occurs when an association has its contractor go into a unit and remove portions of the wall or the floor to gain access to common elements which require repair. Incidental damages typically can be predicted from the outset of a project but are generally unavoidable.
It is recommended that condominium associations look for incidental damage language in the governing documents and speak with their attorneys about incidental damages prior to starting large maintenance projects—particularly when such projects are expected to affect the interior of individual units. Many condominium declarations directly address incidental damages, but some do not. Some governing documents state that the association’s obligations include a duty to repair all incidental damages caused by the association’s maintenance of the common elements, some provide similar obligations up to specified monetary caps, some say that the association is not liable for repairing incidental damages, and some make no mention of incidental damages at all.
There is also a question, often raised, as to when an association is obligated to repair incidental damages for unit owner-installed “upgrades” that are not similar to the standard improvements originally installed by the developer. Depending on the facts of a particular situation, the repair obligation may fall outside of an incidental damage provision’s repair obligations. So, obtaining legal advice when navigating these issues is beneficial.
One of the best ways to clarify what is to occur with incidental damages and any limitations to same, is to amend the Declaration of Condominium to specifically address the issue. Your community association attorney should be consulted on this issue to help determine the best type of incidental damages provision for your community.
