Perfecting the Condominium as a Housing Tool: Innovations in Tort Liability and Insurance

Abstract

Housing discussions frequently center around sprawl and the city's -effort to combat neighborhood decline, originate and maintain low and middle income housing, and meet population pressures with high-rise commercial, apartment, and multipurpose buildings. The condominium concept, virtually unheard of five years ago, may soon see service in all of these areas. Thus, for example, it has been heralded as a means of restoring the amenities of city living, as well as the ideal format for suburban property owner associations. More recently, public officials have begun to explore its potential as a source of home ownership for economically deprived families. Whatever the relative merits of these projections, condominiums now constitute a significant percentage of all new housing starts and must figure prominently in the thinking of land planners. Enabling acts, designed to provide a legislative foundation for the condominium format and to fit it into the existing legal system, have been enacted by the federal government, District of Columbia, and forty-nine states.1 However, perfection should not be anticipated in such a broad undertaking; drafting flaws are certain to appear as experience is gained with various condominium uses. One such imperfection has recently come to the writer's attention, namely, failure to clarify the unit owner's posture (and that of his household) with respect to tort liability and insurance. What is the nature and extent of the risk assumed as co-owner of the project and its facilities? What policies are available to neutralize this exposure and should protection be purchased on an individual or community basis, or perhaps both? Conversely, is a participant permitted to sue the group (or a fellow unit owner) if negligently harmed? Would such a judgment be covered by a master liability policy? While these and related queries may have been academic in other times and societies, the omnipresence of insurance and today's tort calendars indicate that these questions will press for immediate resolution. As might be anticipated, some unit owners have already fallen on icy, commonly-owned walks or met with other mishaps. Counsel