The use of asbestos in building materials has caused serious health consequences for generations. This naturally occurring mineral fiber has been linked to mesothelioma, lung cancer and an increased risk for colon cancer.
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Asbestos removal is a complex process requiring specific expertise and equipment, and should only be performed by accredited professionals. |
During renovations, the association’s
contractors entered certain units to access common elements
and, in doing so, disturbed popcorn ceiling finishes that
contained asbestos. The association then demanded that the
affected unit owners, including Lassen, abate the asbestos
at their own expense. It relied on a provision in its
governing documents stating that owners are responsible for
maintaining, repairing and replacing “interior surfaces of .
. . ceilings . . . and all other portions of [their]
apartment except the portions specifically to be maintained,
repaired and replaced by the Association.”
Lassen refused and filed suit, citing a different provision
of the property’s declaration of condominium stating that
the association must promptly repair any “incidental damage”
to a unit caused by its maintenance or repair of the common
elements.
At trial, the association argued that decorative ceiling
finishes, including those containing asbestos, are clearly
the owner’s responsibility under its governing declaration.
Lassen countered that the asbestos abatement became
necessary only because the association’s contractor
disturbed the ceiling while accessing the common elements,
triggering the association’s duty to repair the resulting
damage, and this presented a genuine issue of material fact
that must be determined at trial and precluded summary
judgment.
The trial court concluded that under the unambiguous
language of the declaration, the decorative ceiling finish
within the unit must be maintained, repaired and replaced by
its owner, and it granted summary judgment in favor of the
association.
Lassen appealed the decision based on his contention that
the governing documents contained two conflicting provisions
that created a question of fact for the jury: one assigning
responsibility to the owner for interior surfaces, and
another requiring the association to repair incidental
damage it causes.
The Second District Court of Appeal reversed the trial
court’s decision. The appellate panel reiterated that
summary judgment is appropriate only when there is no
evidence upon which a jury could properly return a verdict
for the opposing party. If that party demonstrates the
existence of a genuine issue of material fact, the motion
must be denied.
Two of the three judges concluded that because the asbestos
was not discovered until the association’s contractor
damaged the ceiling while performing its obligation to
repair and maintain the common elements, the relevant
provisions of the declaration were subject to two reasonable
interpretations. As a result, they determined a factual
dispute existed that could not be resolved on summary
judgment.
The third judge agreed that summary judgment for the
association was improper but reached that conclusion for a
different reason. In that judge’s view, the governing
documents were not contradictory; rather, they worked in
harmony to exempt owners from responsibility for incidental
interior damage caused by the association’s performance of
common element maintenance. With that interpretation, the
evidence presented could allow a reasonable jury to rule in
the owner’s favor, making summary judgment inappropriate.
As these recent circuit and appellate court rulings
illustrate, determining which party bears responsibility for
asbestos remediation in condominium units is a highly
complex issue, dependent on the specific facts and the
governing provisions at play. In such matters, associations
and unit owners should proceed only under the guidance of
experienced legal counsel, who must carefully evaluate both
their client’s actions and the stipulations set forth in the
community’s declaration of condominium.