Is Your HOA Fulfilling Its Maintenance Responsibilities?

A frequent source of controversy within homeowners associations is related to maintenance responsibilities. Association members often complain about conditions that need repairs and disputes between association management personnel and homeowners over who is responsible for necessary repairs are commonplace. Such controversies can be minimized by both the association members and the association’s management personnel having a clear understanding of applicable state laws and the provisions contained in the association’s governing documents concerning maintenance responsibilities.

Under both state statutes and an association’s governing documents, the homeowners association, acting through its board of directors and the management personnel that assist the board, are responsible for maintaining, repairing and replacing the common areas within the common interest development. While there may be situations where the association is entitled to be reimbursed by a homeowner or a third-party for damage that was caused to common area property, the responsibility for the repairs still falls on the association. Fulfillment of the association’s maintenance responsibilities requires performance of the following duties by the association’s board members and the management personnel who assist them:

• Periodic inspections of the common areas.

• Diligent investigation of complaints concerning the condition of common areas.

• Repairing all common areas that are in need of repairs.

The frequency of required inspections of the common areas may be dictated by state laws or the association’s governing documents. If so, the inspections should be made and documented as required by the applicable laws and provisions in the governing documents. If not specified, the inspections should be performed at reasonable time intervals established by the association’s board of directors (i.e. monthly, quarterly or annually). The association’s responsibilities concerning inspections of the common areas includes the maintenance of appropriate records that are required for the preparation of reserve studies that may be required by state laws and/or the association’s governing documents. Such studies require: (i) the identification all major components that are part of the association’s common areas; (ii) the estimation of the remaining useful life of each component; and (iii) the estimation of the cost to repair or replace each component.

The association’s duty to investigate complaints concerning common area conditions requires that qualified personnel acting on behalf of the association investigate problems that have been reported concerning common areas (i.e. water issues caused by roof or window leaks and broken plumbing fixtures). When a problem has been called to the attention of the association’s board, a determination will have to be made as to whether the association or a homeowner is responsible for the repairs that are required. Such a determination requires identifying the source of the problem. Was it something within an owner’s unit that the owner is responsible for such as an overflowing toilet or bathtub caused by neglect of the homeowner, or did it originate from a common area component that the association is responsible for maintaining, such as sewer line that is clogged by tree roots?

Regardless of whether the association or a homeowner is ultimately responsible for the cost of the repairs to common areas, the association’s maintenance responsibilities require it to make the necessary repairs. If the required repairs are for items that are a homeowners’ responsibility, the association must take appropriate action to make certain that the responsible homeowner fulfills his or her responsibilities and makes the necessary repairs. Such action may include the imposition of fines and/or the filing of a court action against the homeowner that is designed to compel performance by the homeowner.

Because the responsibility for maintenance of particular components is often misunderstood by homeowners and association management personnel, it is understandable that disputes between homeowners and the association are commonplace and frequently result in costly litigation concerning maintenance issues. An effective way to facilitate the handling of such disputes and minimize the risk of becoming involved in unnecessary litigation concerning these issues would be to have the association’s legal counsel review the association’s governing documents along with the applicable state statutes and then prepare a memorandum and maintenance chart that would be part of the association’s records and circulated to all homeowners. The memorandum and the maintenance chart would identify the sources (specific statutes and/or provisions in the association’s governing documents) for identifying who is responsible for repairs and the specific components within the physical properties of the common interest development that the association is responsible for and those that the homeowners are responsible for.