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06/28/90 MARLYN CONDOMINIUM v. GARY L. MCDOWELL

June 28, 1990

MARLYN CONDOMINIUM, INC., ET AL., APPELLANTS
v.
GARY L. MCDOWELL, ET AL., APPELLEES



Appeals from the Superior Court of the District of Columbia, Hon. Steffen W. Graae, Trial Judge

Terry, Steadman, and Farrell, Associate Judges.

The opinion of the court was delivered by: Steadman

A serious water seepage problem threatens the structural integrity of the 121-unit Marlyn Condominium building ("the Marlyn"). Marlyn Condominium, Inc., the unit owners' association which governs the Marlyn, through its Board of Directors ("the Board"), has devised a major repair and renovation project, to be financed by special assessments imposed on each individual unit. Part of the planned project entails removing and ultimately replacing the windows in each of the individual condominium units. However, the Marlyn's governing instruments designate windows as part of the property individually owned by each unit holder. The principal issue on appeal is whether the Board may include the replacement of any of these windows within the proposed project. *fn1

I

The Marlyn Condominium is a 121-unit building on Cathedral Avenue in Northwest Washington. Built over fifty years ago, the Marlyn was converted to a condominium in 1974. By 1986, an apparent water damage problem had grown quite serious, and the Board hired an engineering firm, Engineering and Technical Consultants, Inc. ("ETC"), to ascertain the cause of water leakage and to recommend solutions to the problem.

ETC's report explained that the Marlyn's exterior wall surface consists of brick masonry; behind that is a concrete block supporting wall. Although ETC identified a variety of deficiencies in the building exterior's water displacement system, inadequate flashings between the brick facing and supporting concrete wall ranked as a chief cause of the water penetration problem. *fn2 ETC described the existing flashings above the Marlyn's windows as ineffective because they had grown brittle due to age, and because they do not extend to the exterior surface of the wall. Consequently, "water entering the wall system can run around the flashings and penetrate into the building." ETC also found that a good deal of water penetration originates beneath the Marlyn's windows, where no flashings had been installed. According to an ETC expert, the penetrating water is not only damaging the Marlyn's interior walls, it is also causing bricks in the exterior surface to deteriorate and steel supports within the wall system to rust and weaken. Ultimately, the water damage threatens to cause structural failure to portions of the building.

Based on ETC's report, the Board decided in 1987 to undertake a major renovation and repair project aimed at rectifying the shortcomings in the Marlyn's water displacement system. The dispute before us centers on the portion of the renovation project which entails removing the Marlyn's existing windows and replacing them with new aluminum-clad windows made by the Pella Company. The trial court found that window replacement accounted for approximately one-third of the cost of the first phase of the renovation project.

The evidence at trial indicated that at least two separate factors necessitated window replacement as part of the project. First, in order to install new flashings, the windows must be removed to provide access to the exterior wall system. Evidence at trial indicated that once removed, the original wooden windows, which had rotted and deteriorated due to long-term water penetration, could not be re-installed; they could "fall apart" if a contractor tried to put them back into the window openings.

A second reason for installing new windows relates directly to the protection of the Marlyn's interior wall system. Because of warping and the porous nature of the existing wooden windows, they no longer provided an adequate seal with the exterior wall; as such, the windows themselves served as a point from which water penetrated the Marlyn. As a result, re-inserting the existing windows after installation of new flashings would only lead to continued water penetration of the interior wall system. *fn3

Arguing that the Marlyn's governing instruments designate windows as part of each owner's unit and that the Board has no authority to replace part of an individual unit, a group of unit owners ("McDowell") sought to halt the renovation project. The trial court agreed and therefore enjoined the Board from "replacing any of the existing windows." *fn4 The Board appeals.

II

A

The parties agree that rights with respect to repair and replacement of the windows must be found within the context of statutory law and the Marlyn's governing instruments, namely, the Declaration of the Marlyn Condominium ("Declaration") and the By-Laws of Marlyn Condominium, Inc. ("By-Laws"). *fn5 There is also agreement that under the Declaration, the windows in a unit are part of that individual unit and thus part of the fee simple of the individual unit owner. *fn6 The element of disagreement is whether, notwithstanding such individual ownership, the Board nonetheless may replace the windows in the course of the proposed project.

Determinative in resolving this legal issue are provisions governing two aspects of the "little democratic sub-society" *fn7 that a condominium represents; namely, those dealing with maintenance and repair and those dealing with a related right of access. The statutory provision cited to us and to the trial court by both parties, D.C. Code ...


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