Q. Residents of our 250-unit HOA in New Jersey have been complaining about dirty water for well over a year. First, the board and management told us it was an individual unit problem—then they replaced boilers, to no avail. We still had dirty water. After 7 to 8 months, we were told the hot water holding tanks throughout the complex were going to be replaced. Is the management company responsible for the cost to replace the hot water holding tanks as they were negligent in getting the problem of dirty water fixed in a timely fashion?

                                       —Feeling Parched

A. Sara Israilev, associate at law firm Chiesa Shahinian & Giantomasi PC, in Roseland, replies, “For the purposes of this response, we will use the words ‘boilers’ and ‘hot water holding tanks’ synonymously. Whether the equipment is the responsibility of an individual unit owner or the HOA should be specified in the governing documents of the association.

“In the case of a condominium association, the governing documents will describe what is included in an individual’s unit and what is a common element. The governing documents should describe who is responsible for maintaining, repairing, and/or replacing what. In addition, the HOA’s reserve study should be reviewed to determine the useful life of the equipment being replaced and whether funds were reserved for its replacement. 

“Generally speaking, a boiler that services multiple units will be deemed a common element, which is typically the HOA’s responsibility. A boiler that services a particular unit will typically be the unit owner’s responsibility. In some cases, mechanical and other equipment that services multiple units will be maintained and replaced by the HOA, but the expense will be billed back to the benefitted units.

“The question, however, is whether the management company is responsible for the cost to replace the boilers because the management company acted negligently. The HOA’s governing documents typically authorize the board of trustees, which is charged with maintaining, repairing, and replacing common elements, to employ management services to carry out the board’s responsibilities. The management company may be in the best position to know when there is an issue and to offer advice concerning a remedy. However, the management agreement must be reviewed and the actions taken to diagnose the problem examined in order to properly assess whether liability exists and to what extent management and/or the board is responsible. 

“For example, were competent outside contractors and/or professionals engaged to address the problem? To establish that the homeowners association was negligent would mean that one would need to prove that there was a duty of care, that that duty was breached, and that the injury was proximately caused by the breach.

“In a case of apparent first impression, Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005), the court ruled that an association had a duty to warn its unit owners of a potential problem even though the association had no responsibility to correct that problem of which it had knowledge. 

“While the question posed above does not provide sufficient facts on which to assess liability, we have attempted to offer a helpful protocol to guide a determination.”