|Must whole building pay for top unit's insulation upgrade?
Bill and Kevin Burnett
Q: We have a two-unit Victorian and are converting the units to condominiums.
My tenancy-in-common partner, who lives in the unit above me, is installing a new heating system and is running ductwork in the small attic space. There is old insulation that was blown in decades ago, and his contractor says it should be removed so new insulation and electrical work can be done.
I am fairly sure that he envisions the insulation as being placed between the roof rafters, and since it is part of the roof, then it's "common," meaning that I would be obligated to help pay for it. However, from what I have read, insulation is not placed on the underside of the roof but above the ceiling.
I read the following definition in our TIC agreement:
"A 'unit' is a designated boundary dwelling within the TIC property. The boundaries of each unit shall be the perimeter walls of the dwelling units in the buildings, including both the boundaries themselves and the air space so encompassed, and shall include all utilities, electrical, plumbing, HVAC, and other utilities included in the walls and boundaries that serve that unit alone."
My partner first said it would benefit me, then switched gears to say that it is part of the roof structure. I am being told that the insulation above them is "structural" and I am also financially responsible. I find it hard to believe that I need to pay for the removal of old insulation and the installation of new.
A: We think he's feeding you a line of bull. Insulation is a lot of things, but it isn't structural.
Whether insulation is rigid, batt or blown in, it provides little, if any, structural integrity. Placing insulation between the roof rafters defeats the purpose of insulating the attic and, if your partner's motivation is to try to get you to carry part of the freight on the heater installation, he's making a big mistake.
We presume that the attic is ventilated properly with outside air. Ventilation not only provides air movement in the attic but also allows the ambient air temperature in the attic to approach that of the outside. If the ceiling isn't insulated, heat will radiate out of the living area, making it colder and causing the new heater to work harder than it should.
The bottom line is that insulation should be installed between the ceiling joists, not between the rafters.
Your TIC partner is right in one respect. If the insulation is done properly, it will benefit you as well as him.
Whether you bear any financial responsibility for this improvement is governed by your TIC agreement. TIC is short for tenants in common. Tenancy in common is a form of real property ownership where one or more people own an entire building in percentage shares. A detailed written agreement delineates each tenant-in-common's ownership interest as well as rights, duties and responsibilities.
These include the exclusive right to occupy and use an individual dwelling unit, parking spaces and storage spaces; payment of mortgages, taxes and insurance; and responsibility for repair and maintenance.
Generally speaking, TIC repair and maintenance expenses are divided into individual expenses and common expenses. Individual expenses are those incurred by the owner of a unit to make improvements or repairs benefiting only his unit. Common expenses are those incurred that benefit the owners of the building as a whole.
An example of a common expense might be replacement of the main water service or replacement of the main electrical distribution panel. An example of an individual expense is the new furnace your TIC partner is installing.
We think you're going to need some help interpreting the TIC agreement. The definition you sent us seems to say that your partner is probably responsible for the cost of installing the heater, including the wiring and ductwork. Whether that includes the collateral task of removing and replacing insulation is less clear.
On one hand, you will reap some benefit from upgraded insulation. On the other hand, if the insulation upgrade is an integral part of the heater installation, you may not be liable for the cost.
We suggest you contact the lawyer who drafted the agreement to get his or her take on whether you bear any responsibility for the cost of the insulation.
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Copyright 2009 Bill and Kevin Burnett