You have raised an important question – which is a bit complicated for the Association. The concern to the Association is potential contamination in the common-areas – the unit is not our issue per se – but it is very likely that if there was contamination in the “unit” (as defined in your CCRs), then there is possible contamination – to one degree or another – in the common-areas. That is where we, the Board, MAY have a concern to resolve.
Many Associations CCRs define that the unit ‘ends’ at the paint on the walls – making the sheetrock/drywall behind the paint common area. It is a contamination of the “common-area sheetrock” or other part of the common-area that make this an association issue, as mentioned.
We need to do a few things:
1st. We need to get a hold of the Health Department and inquire as to the status. The primary responsibility of all this falls on the owner but we do have an HOA concern because these chemicals can get into the walls. As such, we need to ask if the unit has been decontaminated. We also need to ask whether the decontamination would include testing the drywall, etc.
If the decontamination is complete and the Heath Department signs off on the unit and common area walls as being ‘clean,’ then we do advise that you send out a community newsletter or communication with this update. We do not want to be accused of not disclosing an issue that relates to the common area we oversee. I am assuming that because the unit has been ‘red tagged,’ that other owners know of the problem and this may be causing commotion.
However, if the unit is not ‘clean’ yet:
2nd. We should engage in an independent testing of a few key spots in the common areas – to make sure there is not a problem. If we test (unfortunately, it would be a common expense) and we find nothing of concern, that is great news and we report that to the members as well. It is very possible that there is no contamination in the common area walls, but we should confirm to avoid be accused of not investigating this matter.
If there is contamination in the common area walls, then we should get estimates to take care of this issue after identifying the scope. My experience has been that usually the contamination is minor, if any at all, as it relates to common areas. If we must pay for testing and even undertake any remedial work, we will seek to recover that from the unit owner who caused all this. Getting reimbursed however is not guaranteed but we would work diligently to seek damages and repayment fees.
3rd. The bigger concern, as I have eluded to, is that as units sell, and there is some contamination in the common areas, and it was not disclosed (yet we knew of this problem) and then someone gets sick or complains — that could put the Association is a serious liability position and our job is to help you avoid that. Following-up on clean-up efforts is the Board’s obligation. I am hopeful however, if experience holds true, that there is not much of a problem in the common areas if at all; we then update the owners; and have just protected the Association.
If there our any questions on this or similar issues do not hesitate to reach out to us. Our office would be more than willing to contact the Department of Health and go through the issue above with them. This is one of those situations that an ‘ounce of prevention is worth a pound of cure…” (so to speak).