Who Pays for Windows? For Now We See Through a Glass Darkly… by Brian P. McLean

“But, soft! What light through yonder window breaks?”
-Romeo and Juliet, Act II, scene 2, line 1.

Unless your association is a front for the NSA, your association has exterior windows. A window is a hole in the wall and everything that fills that hole. In an ideal world, windows function, they live long and useful lives, they let in light and other good things, they keep out bad things, they are maintained, repaired, and replaced to professional standards by the association, and the owner who consumes them during their useful life pays the costs of consumption by adequately funding reserves.

By default under current State law exterior windows lie outside unit boundaries. Exterior windows are thus part of the common elements. Because they are part of the common elements an association has a right to replace windows that are either defective or are reaching the end of their useful life.[1]

Statutory defaults may be modified by your condominium declaration. If your condominium declaration permits individual owners to control the repair and replacement of exterior windows, consult with an attorney about changing your declaration.

There are many good reasons why an association should maintain control over window repair and replacement. An association is more likely to abide by and avail itself of code requirements that ensure the installation of energy efficient-windows and window glazing – features that can significantly reduce future costs. When owners are allowed to replace their own windows, some owners will skimp and use contractors who fail to use quality materials and skilled workers. Poor quality work can lead to moisture in the building with predictably bad and very bad results. When the vast majority of windows need replacement toward the end of their useful life it is almost certainly more cost-effective for the association to obtain one bid than for individual owners to obtain their own bids. If one owner fails to pay for work performed on the common elements, the stiffed contractor could lien all of the units.

Replacing broken glass, flashing, caulking, or windowstripping can cause serious damage if not performed by a skilled professional. An association should limit owner maintenance responsibilities to inspecting, cleaning, and finishing interior framing. Limiting owner maintenance responsibilities reduces the risk that an unskilled owner will cause serious damage to other units, property, and the integrity of the building.

What your declaration says about maintenance, repair, replacement, unit boundaries, common expense liability allocation, viable construction defect claims, and insurance should be taken into consideration when determining how much each owner pays. But determining how much each owner pays for window repair and replacement doesn’t need to be complicated. In almost every case an association can avoid a donnybrook over who pays for what by adopting the following Windows Code of Conduct:

 Windows Code of Conduct

1. The Association controls all aspects of repair and replacement of exterior windows.
2. Owners must ask for permission from the Association before repairing or replacing windows, before installing new windows, skylights, solar tubes, air holes, or periscopes, or before painting or finishing window exteriors.
3. Only the Association may penetrate a unit’s perimeter walls, floor, or ceiling.
4. The Association pays for installation, repair, and replacement of windows and recovers those costs from some or all of the owners.
   1. If window installation, repair, or replacement is an individual unit owner expense, the Association assesses the cost to the benefited owner or owners in a fair and equitable manner.
   2. If window installation, repair, or replacement is a common expense, then the Association assesses all owners for the cost in accordance with the declaration’s common expense liability schedule.
5. Windows maintenance means inspection, cleaning, and interior finishing. Each owner at least annually inspects the windows for fogging, for water damage on the window wall, for air leaks or missing caulking, or for other damage, and reports any possible damage immediately to the Association.
6. If a window is installed incorrectly, the Association asks the installer to cure the installation at the installer’s expense.
7. If a window is damaged as a result of an event covered by insurance, the Association files an insurance claim when doing so is reasonable.
8. The Association hires a suitably qualified professional such as an architect, reserve specialist or building envelope consultant to estimate remaining useful life (windows don’t last forever) and an appropriate reserve funding model.
9. The Association follows correct budgeting procedures.
10. The Association controls all aspects of repair and replacement of exterior windows (yes, this is included twice).

Who pays for windows? We all do, eventually. But in a world where some answers remain in the dark, perhaps this article and a broken window will let in some light.

[Originally Printed in the WSCAI Community Associations Journal, December 2013, page 22.]

BRIAN P. McLEAN is managing shareholder at the law firm of Leahy McLean Fjelstad and a member of the College of Community Association Lawyers. He concentrates his practice in the area of community association law and speaks and writes frequently about community associations.

Brian served previously as a board member and president of the Washington State Chapter of CAI and as chair of WSCAI’s Legislative Action Committee. Brian is former lead singer, guitarist, and songwriter for the now defunct Pacific Northwest band The Acetones. His wife adores him and his children revere him.