“When I retire I’m going to spend my evenings by the fireplace going through these boxes. There are things in there that ought to be burned.” - Richard M. Nixon

Thanks very much to a reader (that’s at least one) for reaching out about this issue.

Likely the most overlooked portion of preventive maintenance in a condominium association is the inspection and cleaning of flues and chimneys.

Fire has been around a long time. As one magazine article noted, even cave men (and women) knew fire was dangerous, yet tens of thousands of years later we actually start fires right in the middle of our flammable carpets, furniture, bookcases, and desks stacked with papers, all of which may well be surrounded, if the condominium association is old by non-fire rated sheetrock.

And yet, I can only think of a handful of associations that require inspections of their chimneys and flues. (The chimney is generally that portion that extends beyond the roofline, and the flue is the pipe through which the smoke flows.)

At least part of the problem is that most times the responsibility for the flues and chimneys is not well defined in condominium instruments. Some were originally worded to note the owners’ responsibility goes to the interior surface. Does that mean the interior of the flue, which would mean it is an owner responsibility, or to the interior of the Unit in which case it would be an Association responsibility?

The reality should be that it doesn’t matter. Boards of directors have the authority and the duty to keep the association clean and well maintained and that includes helping to prevent the danger of chimney fires, especially in those associations with attached units. I would suggest building into the budget at least a biannual expense (chimney sweep companies suggest it be done yearly, but if you ask contractors careful questions, they will usually indicate every other year is fine) to clean all flues and check chimney caps.

Some owners who do not have working fireplaces or wood stoves will complain they should not be assessed that cost. But though the Condominium Act allows, if proper language is in the bylaws, a board to assess common expenses that are not truly common to all owners, to the owner who receives the benefit of the expenditure of association funds, the Condo Act does not require that and leaves it to the discretion of a board.

It’s dangerous to start separating out expenses and individually assessing owners as you are slowing transitioning into user fees, which undercuts the whole intent of community association living, i.e. that all are in it together. If you start down that path, expect an owner who lives near the entrance to the association to rightly balk at being assessed for paving the entire roadway when s/he never travels but a bit into the association.

Some will say they don’t use their fireplace or use it very rarely. First, an inspection will tell whether that’s correct, but more importantly, fires don’t only start from the ground floor usage, as birds can and build nests a fair distance down the flue, and a stray spark when using that fireplace only once or twice can then create a fire.

Further, chimney and flues can be damaged by wind storms that blow dirt, dust and sometimes shingles into the flue getting stuck there.

But here’s the trick. Call two or three companies and get a quote for the inspection and cleaning of one chimney. Then ask if you can get a 20% discount because you will be having the company clean twenty or more chimneys.

Finally, for those owners who say they will not let the chimney people into their unit, remind them the Condo Act allows for the entry by a board or its agent into any unit upon reasonable notice. So set a date; send out notice to the owner; ask the owner to confirm they will be on site; and warn the owner that without such confirmation the association will have to bring a locksmith to enter and assess that cost to the owner, a situation the association hopes to avoid.

The other option is to let the owner have an inspection done by a chimney sweep company of their choosing, but give them a date by which they must submit the invoice from the company to show it has been done.

And thanks to that one lonely reader who reads the columns I write. I appreciate it.

Attorney Robert E. Ducharme is a former teacher whose civil practice is limited to condominium law, primarily in Rockingham and Strafford counties. He can be reached at red@newhampshirecondolaw.com and Ducharme Law, P.L.L.C., found at www.newhampshirecondolaw.com.

This article originally appeared on Portsmouth Herald: Condo Column: Up in a puff of smoke