Maintenance, Alterations, and Defects
A homeowner association is required to regularly inspect the portions of the property it maintains as part of the reserve study process.
Condominium governing documents usually require association approval for improvements and alterations which:
- Change the appearance of any exterior area;
- Change any interior common area (except entirely separated exclusive use common areas such as storage closets);
- Impair structural integrity;
- May interfere with another owner’s use or enjoyment of their unit (such as installation of hardwood floors above a neighbor’s ceiling); or
- Interfere with plumbing, electrical, heating, or air conditioning service to other units or the common area.
Planned development governing documents usually require association approval for improvements and alterations which:
- Change any common area;
- Involve the construction of new structures or additions, including fences, walls, pools, spas, balconies, patios, patio enclosures, screens, tents, awnings, window air conditioners, exterior shutters, exterior antennas, or exterior wiring;
- Change the appearance of the exterior elements of existing structures including paint, siding, and roofing;
- Change the appearance of existing landscaping visible from the common area or other lots;
- Obstruct the view from another lot or from the common area; or
- Interfere with the water supply, sewage or drainage systems.
When an owner discovers construction defects in a portion of the property which the association is obligated to maintain, he/she should report the problem to the manager or, if there is no manager, to an association officer or director. The association is obligated to repair the damage under the governing documents, regardless of whether the developer is ultimately responsible. The board is required to exercise prudent business judgment in deciding whether to attempt to perform repairs immediately or to first seek to recover repair costs from the developer.
When an owner discovers construction defects in a portion of the property which the owner is obligated to maintain, he/she must repair the damage under the governing documents. The repair obligation exists regardless of whether the developer is ultimately responsible, or whether a previous owner or real estate agent has violated disclosure laws. If the owner fails to repair, the association may do so and assess the costs against the owner. The owner may be entitled to recover his/her repair costs from the developer, a previous owner, or a real estate agent, and should consult an attorney.
The seller of a unit or lot is required by law to disclose all material defects in the property, including defects located in the common area, and defects located in other units or lots if they affect the unit or lot being sold. The disclosure requirements extend to all defects of which the seller is aware or should be aware, including construction defects. Additional disclosure requirements apply when construction defect litigation has been commenced or is under consideration.
Any real estate agent involved in the sale is also required to disclose any defects of which he/she is aware or should be aware, and is further required to conduct a reasonably competent and diligent visual inspection.
Homeowner associations are not required to provide or disclose construction defect information to prospective purchasers of units or lots.
The term point of origin refers to the first event that sets in motion the series of other events leading to a maintenance need. It is important to understand the point of origin of the damage because it may determine responsibility for its cost. For example, if the bathtub of a condominium unit overflows, the owner is responsible for all resulting damage to other units and to the common area. This is true because the point of origin of the damage was either a malfunction of the faucet or drain (elements for which the owner is responsible) or an occupant’s negligence in allowing the tub to overflow (an act for which the owner is responsible). The Association will still be involved in the repair process and may require the use of specific contractors, but the owner may be responsible for all the costs.
Most governing documents contain detailed procedures for the submittal, consideration, and approval of proposed alterations and improvements. Where the governing documents do not contain these procedures, or where the procedures are incomplete, the board should develop new or supplemental procedures and express them in a written resolution or Rule. If formal approval procedures are not established, or if they are not strictly followed, the association may be prohibited from enforcing its architectural guidelines. Alteration approval is a responsibility of the board, but it may delegate this responsibility to an officer, committee, or professional manager provided it retains final authority.
In condominium projects and planned developments, maintenance obligations are not necessarily determined by ownership. In other words, the fact that an element or area is individually owned does not necessarily mean that it is individually maintained. To determine whether an element or area is individually maintained, begin by reading the sections of the governing documents that specifically discuss maintenance obligations. The maintenance sections may or may not refer to the ownership sections (such as the definition of the condominium unit). If responsibility for the element or area is not clear, attempt to determine the author’s intent by analogy to similar elements or areas that are mentioned in the documents. If the documents provide no clues as to the authors intended allocation of responsibility, determine ownership of the element or area and allocate responsibility based on ownership.
In most condominium projects, individual owners are obligated to maintain the following elements of the property:
- Everything included within the definition of the unit as explained under the heading “What portions of a condominium are individually owned?” above;
- The glass, screens, moving frame, and hardware of windows (even if they do not fall within the definition of the unit);
- All doors, door frames, and door hardware (even if they do not fall within the definition of the unit); and
- The finished wall surfaces of storage spaces assigned as limited common elements.
Where exterior areas such as decks, patios or yards are included as part of a condominium unit or assigned as limited common elements, individual maintenance obligations vary widely, and no generalizations are possible.
In most planned developments, individual owners are obligated to maintain the following elements of the property:
- All interior elements and areas of the homes;
- All portions of the plumbing, electrical, heating and air conditioning systems serving the homes;
- All foundations and structural elements of the homes (but not roofing and siding);
- All glass, screens, moving frame, and hardware of windows; and
- All doors, door frames, and door hardware; and
- All patios and decks.
As discussed below, owner maintenance obligations change when an element or area is damaged by negligence, or as a consequence of the malfunction of an element the owner is not responsible to maintain.
The allocation of maintenance responsibilities between the individual owners and the association is usually determined by the governing documents, and varies widely from project to project. A step-by-step procedure for determining responsibility is discussed above under the heading “What portions of the property are individual owners obligated to maintain?”
In most condominium projects, the association is obligated to maintain the following elements of the property:
- All exterior elements including siding and roofing (but not windows and doors);
- All foundations and other structural elements;
- All landscaping, exterior lighting, drives, and walks;
- All interior common areas including lobbies, hallways and stairs (except stairs connecting levels within units);
- All portions of the plumbing, electrical, heating and air conditioning systems serving more than one unit or located within the common elements; and
- All fire protection alarms and equipment located within the common elements.
Where exterior areas such as decks, patios or yards are included as part of a condominium unit or assigned as limited common elements, association maintenance obligations vary widely, and no generalizations are possible.
In most planned developments, the association is obligated to maintain the following elements of the property:
- All common area;
- All exterior surfaces of homes, including roofing, siding, trim, decks, balconies, exterior stairs, railings, window frames, and door frames;
- All fences and exterior, nonstructural walls;
- All landscaping on each lot; and
- All fire protection alarms and equipment except smoke detectors within homes.
As discussed below, association maintenance obligations change when an element or area is damaged by negligence, or because of the malfunction of an element that an owner is responsible to maintain.
A homeowner association should consult an attorney as soon as it discovers construction defects. Failing to act quickly could result in the loss of recovery rights. The law contains extensive requirements, deadlines, and procedures for construction defect dispute resolution.
The governing documents usually include a minimum standard for owner maintenance such as the statement “each owner shall maintain the elements of the property for which he/she is responsible for in a condition which does not impair the value or desirability of other units or lots”. Most governing documents also provide that if an owner fails to satisfy his/her maintenance requirements, the association may do so and assess any related expense against the responsible owner as an assessment. It is advisable (and required by some governing documents) that the association provide a written warning, an opportunity to correct the problem, and the opportunity to request a board hearing, before undertaking a repair for an owner.
Each Owner is responsible for maintenance necessitated by the negligent or intentional action or inaction of his/her guests, employees and contractors, the occupants of his/her unit (including tenants), and the guests, employees, and contractors of these occupants. The association is responsible for maintenance necessitated by the negligent or intentional action or inaction of its employees and contractors.
Maintenance responsibility for elements on the border of lots within a planned development (often called “party walls”) is determined by the governing documents or, where the documents silent on the issue, by general rules of law. In most cases, each of the bordering lot owners is responsible for a percentage of the cost which reflects the extent to which the element serves his/her lot. Any of the bordering lot owners can undertake necessary maintenance, and recover the appropriate share of the costs from the other bordering lot owners.