Rotting fence needs to be repaired

Q:

I live in a self-managed condo building that consists of six units. The building is beautifully maintained and generally runs very smoothly.

The problem is that one of the ground units has a fence that is covered in wood rot and practically falling down. It is a horrific eyesore to an otherwise well kept building.

The owner has been asked to fix this fence many, many times and has refused. There is another fence owned by another unit owner, which is beautifully maintained.

Everyone who comes to the building comments what a shambles this fence is in. According to the bylaws, the condo association has the right to fix, repair or replace the fence and place a lien on the unit owner. But no one seems to want to do this.

Financially, it would be very costly for the association. As this owner will in all probability move, can the condo association require that any new owner to comply with fixing the fence within a year or face a lien?

Knowing it would be a requirement could alleviate any hard feelings on behalf of the association and the new owner and be negotiated into the new owner’s purchase-and-sales agreement.

We would like to let the current owner know our intentions prior to his putting his unit on the market.

A:

First of all, are you sure the fence belongs to the ground floor unit owner? It seems unlikely that it would. The fence would more likely be part of the common area.

You should check the master deed to determine what is common area and what is owned by the ground floor unit owner.

If the fence indeed does belong to this ground floor unit owner, you could ask this owner to make fixing the fence a condition of selling the unit.

But good luck. What if the owner refuses to do this, which in all probability he will? What then?

Richard Brooks, an attorney in Braintree, suggested a better plan might be to make fixing the fence part of the 6D certificate the condo association must issue before a unit is sold.

The 6D certificate certifies that the owner is up-to-date on condo fees.

Brooks suggested adding an asterisk in the 6D certificate after the phrase “no money due.” The association could then add, “The fence needs to be repaired and is the responsibility of the owner, who will be assessed by the association if the fence is not repaired.”

Most buyers would be scared off by such a clause, Brooks noted. Reiterating the unit owner’s responsibility to fix the fence in the 6D certificate might be enough to induce the current owner to make the repairs before putting the unit on the market.