HOA Approval of Owner Modifications are frequently requested to approve modifications that are desired by owners of separate interests within the association. The approval of modifications is generally a function of the associations architectural review committee and/or the board of directors. State laws and/or governing documents (generally the CC&Rs) typically contain provisions that provide for the granting of approval subject to conditions. Thus, before even considering an owners request for a modification, the people who are responsible for evaluating the request need to be familiar with and understand what their state laws and associations governing documents require relative to such requests.
When it comes to considering HOA Approval of Owner Modifications, those vested with the decision making authority frequently mistakenly believe that their concern in reviewing owner applications for modifications is limited to modifications that impact the exterior appearance of the particular owners separate interest. Because desired owner modifications to the interior of their unit could have substantial consequences to other owners (i.e. the installation of hardwood floors in an upper level unit) and some desired interior modifications have the potential of causing damage to structural elements that are part of the associations common area (i.e. damage to the roof caused by the installation of a skylight), or to common area mechanical systems (i.e. damage to water supply pipes), it is equally important to properly evaluate such requests.
Whether they are dealing with a condominium unit, an individual residence, a lot, or exclusive use common area, association directors and architectural review committee members must exercise their decision making authority relative to applications for modifications in a way that will protect the future financial integrity of the association, without regard to their relationship to the person(s) who submitted the application. One way of protecting against the risk of future association expenses that result from the modifications made by owners is to require an agreement from the requesting owner for that owner to be financially responsible for the modification(s) in the future as a condition of approving the requested modification. Such agreements are commonly referred to as a hold harmless or indemnity agreement.
A hold harmless or indemnity agreement is a written recordable document that runs with the land, in which the owner(s) who is/are requesting approval for modifications, agree on behalf of the current owner(s) and his or her successors in interest, to be financially responsible for all property damage that may be caused by the modifications. Such agreements also commonly include provisions that require insurance and the proper maintenance, repair and/or replacement of the improvement as necessary. An indemnification agreement must contain the legal description of the separate interest, must be signed by each owner of the separate interest, and their signatures must be notarized in order to be able to record the document. A sample Hold Harmless and Indemnity Agreement may be accessed below.
When dealing with a request for HOA Approval of Owner Modifications, it is also extremely important for those people who act on behalf of a homeowners association in evaluating and making decisions on the request to be aware of limitations on their actions that are imposed by state and federal laws relative to modifications (commonly referred to as accommodations) that are requested by, or on behalf of, a disabled person. When the requested approval is predicated on a claim of disability, the right to condition approval on indemnification, insurance, and repair may be limited. For a better understanding of the issues and limitations when evaluating requests that are based on a claim of disability, see Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Joint Stmt re Reasonable Modification Under the Fair Housing Act_.
Link to form: Hold Harmless and Indemnity Agreement