Opinion
45045 Record No. 831168
June 13, 1986
Present: All the Justices
Judgment is reversed in a declaratory judgment action where the trial court had held that a condominium council could characterize installation of improved windows in individual units as maintenance and repair and assess owners the cost.
Real Property — Condominiums — Condominium Act (Code Sec. 55-79.39, et seq.) Statutory Construction — Powers of Condominium Councils — Maintenance and Repairs — Improvements
A majority of condominium unit owners in a building voted to replace all windows in the building in order to reduce utility costs which were borne in predetermined proportions by the owners. Some owners who opposed the replacement challenged the authority of the council to replace the windows in their units and to assess them for the cost without their consent. The trial court upheld the authority of the council to act on behalf of the common good and an appeal was taken.
1. While the bylaws of the condominium allow for maintenance and repair work to be done by the council of co-owners, the installation of insulated windows clearly is an improvement and cannot be characterized as maintenance and repair. Nothing in the Condominium Act or the condominium instruments authorizes improvements against the will of the owners and at their expense and the council exceeded its authority.
Appeal from a judgment of the Circuit Court of Arlington County. Hon. Charles H. Duff, judge presiding.
Reversed and final judgment.
John Dalonas for appellants.
John E. Coffey (David S. Mercer; Thomas Fiske, P.C., on brief), for appellee.
The dispositive issue in this appeal is whether a condominium owners' association has the authority to replace windows within an individual condominium unit and to assess the owner the cost thereof without the unit owners' consent.
The parties have stipulated the facts. G. Thomas Montgomery and Patricia B. Montgomery own in fee simple one unit in the Columbia Knoll Condominium (the Condominium). The Columbia Knoll Condominium Council of Co-owners (the Council), an association of all unit owners, is responsible for the administration of the Condominium.
The Condominium units do not have individual meters for electrical and gas consumption. Therefore, the utility expenses are apportioned among the unit owners according to the size of their units. Based upon professional advice, the Council's board of directors recommended the replacement of all windows in the Condominium with insulated windows as the most effective means of reducing the common utility expenses.
At a meeting of the Council, a majority of the unit owners present voted to replace all the windows at a cost of $125,399.06. The Montgomerys were among the 29% present who opposed the expenditure.
Consequently, the Montgomerys instituted a declaratory judgment proceeding to challenge the Council's authority to replace the windows in their unit and to assess them the cost thereof without their consent. The trial court ruled that the Council acted within its authority, reasoning that "there exists a direct, tangible, demonstrable connection between the [Council's proposed action] and the common good." The Montgomerys appeal. The Condominium Act, Code Sec. 55-79.39, et seq., provides in part:
[A]ll powers and responsibilities with regard to maintenance, repair, renovation, restoration, and replacement of the condominium shall belong (1) to the [Council] in the case of the common elements, and (2) to the individual unit owner in the case of any unit or any part thereof.
Code Sec. 55-79.79. (Emphasis added.)
The Council does not dispute that the windows in the Montgomerys' unit are "part" of their unit. Indeed, the Condominium's master deed expressly defines a "unit" as including the windows. Thus, the Montgomerys contend that, because the windows are part of their unit and not "common elements," the Council has no authority to replace them.
The Council, on the other hand, contends that it had authority to install the insulated windows because its action was a "reasonable [restriction] on the use of units" and "serve[s] the best interest of all of the [unit] owners." In support of this contention, the Council cites the following provision of the Condominium's bylaws:
The Council relies in part on Article VI, Section 6 of the Condominium's bylaws to support its assertion of authority. We find no merit to this argument. Section 6, entitled "Rules of Conduct," governs the conduct of the unit owners, assuring the aesthetics of the common elements and the safety and peaceful enjoyment of all owners. Section 6 has no application whatsoever to the Council's authority over the unit owners' fee simple interest in their individual units.
VI/SECTION 2. Maintenance and Repair.
(a) Every co-owner must perform promptly all maintenance and repair work within his own [unit] which, if omitted, would affect the Project and its entirety or in a part belonging to other co-owners, and is expressly responsible for the damages and liabilities which may result from his failure to do so.
The Council's reliance upon this provision is misplaced. This provision clearly is limited to "maintenance and repair," terms which, by definition, do not include improvements. "Maintenance" means to preserve or to keep "in a state of repair," Webster's Third New International Dictionary, 1362 (1981), and "repair" means to fix or "restore . . . what is torn or broken." Id. at 1923.
The installation of insulated windows clearly is an improvement — an enhancement in quality — to the individual units; it cannot be characterized as maintenance or repair. Nothing in the statute or the Condominium instruments authorizes the Council to improve the Montgomerys' unit against their will and at their expense. We conclude, therefore, that the Council exceeded its authority.
Accordingly, we will reverse the judgment of the trial court and enter a final judgment in favor of the Montgomerys.
Reversed and final judgment.