contractor where they determined that the water infiltration which was first wanted at that time or close to that time was coming from the roof or from some other bridge structure in the outside this is a problem that my at that time well i mean i suppose what i mean i mean how many you know i mean her attempt at that time was to notify and to pass that the socialisation fulfill their duties and we most people don't association to spot a problem and then move forward with a way to remedy the problem as is required in the declarations but yes i suppose you know i mean anybody  suffered serious injuries followed person's reaction that action was litigated for certain years and then finally settled during the course trying to she did file a counterclaim in this case seeking money damages what affirmative defense is germane to a forcible entry to tailor the court makes i think a pretty strong statement that all these issues for judicially trying to do reasons should be tried together and i didn't make that argument to the now on going in that case i still think would be more efficient it's not as compelling as it was before because now there's been a lot of procedure before one judge on  the authority goes to the authority of the board before the the board can enact a special assessment of the new structure they've got all the power in the world and we're going to talk about that back door provision just in the second  they're going to have the authority under the declarations and append the door doesn't fall within the definition of a common element or in the common element because it's inside you it's not a perimeter it's in the section where the tax says anything inside  union is the responsibility of the you really doesn't relate it's not jimmy choo the associations the right to possession in this is this is fundamental and there's a water infiltration that has significant under the law that associations or developers of the new buildings have a duty in absolute do the repair of the roof to prevent this very problem from it i mean it's it's all it's just almost in congress to to to believe that there's an absolute duty to collect assessments for the repair of common elements and yet in this kind of a  case where there's evidence of the allegations they have refused to do that that they can then say will we get our money and we need to move into we can throw you out it just it it there's nothing more germane water refrigeration in the roofs so as a matter of public policy you know i mean this is this is sound public policy terms of placing the burden on party there was no evidence presented that the special assessment relating to the elevator was ever mandated by law and there was no testimony to that effect at all and so the argument appeal i think is in new sawyer case which the purpose of both cited in their brief talks about and somewhat is somewhat to ryse it of the fact that the defenses raised in that case involved breach of contract and tort claims much as what we're that it's intended to be a statutory ever summary statutory proceeding and if we open it up to affirmative defenses the summary proceed as i'm sure the courts are aware of these are that there are myriad of these claims that are brought every day in the trial courts if we open the floodgates to allowing the parties to assert defenses such as these and no longer limit the affirmative defenses to those that the courts have deemed to be germane these will no longer bit your position well i think the there are a couple of issues one is it and what struck me as i was listening to argument in answer to your questions is the catch twenty two that's created here the union owners have an obligation to pay the assessments repairs and other such things only occur when the payments are made so what we have here is council saying i want the repairs made but i'm not going to pay for them i mean it's not as though there is a pot of money there than the relative balance of power and if they are left without an ability did turn down the electricity for example they have certain remedies i think the unit owners more powerful and that's the reason for the discrepancies between the way that the wa cited by carlson for example this rosewood case talks about how they were overcharged based on their brakes i mean that's clearly a situation where it was pretextual here if you follow the facts that were asserted in the affirmative defenses and in claims it seems clear that what they're serving is a breach of contract work breach of some sort of duty and given the language in the sawyer case for example that says this is not a germane action that i think that the court done the limitation on the amount that can be spent should not be deemed to prevent this expenditure from having been assessed against or as a special assessment because it did fall into the can be added to the act for repair or replacement or restoration first of all it's within the discretion of the appellate court as to whether you want to hear it or not it's a restriction i mean that but not a restriction on you but more importantly the policy behind that is so as not to surprise the other side and to make sure that they had an opportunity if an opportunity existed to braise arguments that they might have had with respect to that and the transcript shows that arguments were made with respect to these issues in the trial court proceedings so they weren't deprived of an opportunity to speak to those issues and i think that the trial for it's acknowledgment of the fact that this was a great pair and the plain language of the action properly should allow it to have been approved in the manner that it was