A common conflict between homeowners association management personnel and association members relates to the failure on the part of the associations board of directors to properly maintain various components that are part of the association’s common areas (i.e. roof, wood siding and trim, decks, etc.). In the typical scenario, homeowners are upset with the fact that the association’s board of directors is not performing its responsibilities relative to maintenance of common area components. The owners contend that their individual units are suffering damage as a result of a common area condition that is not being taken care of and/or that their property values are suffering as a result of the lack of maintenance. Such homeowner complaints frequently get disregarded by the association’s controlling board of directors for various reasons including lack of funds to perform the necessary maintenance, disputes over the need for the maintenance, and disputes over whom is responsible for the maintenance.
The responsibility for common area maintenance within a common interest development that is controlled by a homeowners association is detailed in both state statutes and the common interest developments governing documents (generally the Declaration and/or the CC&Rs). The state statutes and an association’s governing documents typically impose a responsibility for repairing and replacing common areas on the association, acting through its board of directors. Although many associations have property managers that are given certain maintenance responsibilities, the managers are mere agents of the directors and the ultimate responsibility for making sure the common areas are properly maintained falls on the board of directors and not the property managers.
In order to generate the funds that are needed to properly maintain the common areas within a common interest development, the association’s board of directors has the added responsibility of imposing regular and special assessments on the association members in an amount that is sufficient to carry out their maintenance responsibilities. Additional related responsibilities that are imposed upon association directors include a duty to periodically inspect the common areas and prepare a reserve study that lists all major components, the remaining useful life of each component, and the cost to repair or replace them. The inspection and assessment of the common area components is generally done by retained third-parties who are experienced in such evaluations and who provide the necessary information to the associations board of directors.
Since most expenses that occur within homeowners associations are predictable, they should be anticipated and provided for in the annual budget. Failures to properly maintain common areas are typically the result of not properly evaluating common area components, failing to prepare reserve studies, poor budgeting, and not imposing assessments that are sufficient to cover all necessary expenses. Some associations deal with problems relating to a lack of funds for repairs to common areas by seeking to modify their governing documents through properly adopted amendments that provide for transferring the responsibility for certain maintenance and repair expenses from the association to the members. Such associations will typically develop maintenance charts that detail the various common area components within the association and clearly describe the respective maintenance and repair duties of the owner/members and the association. Through this process, the association is able to transfer the financial burdens associated with certain maintenance and repair responsibilities to the members thereby decreasing the amount that the association needs to have budgeted for the maintenance and repair of the common area components.
Although courts will generally allow associations “judicial deference,” where the court will defer to an association’s board of directors on a particular method of repairing a common area component, that deference does not typically include decisions on whether or not to make repairs that are necessary in order to properly maintain common areas. Thus, regardless of fault, when damage has been caused to common area components, the damage must be repaired. When and how the damage is repaired is dependent on various factors like who is ultimately responsible for the cost of the repairs and whether or not a claim is made for insurance that might cover the cost of the repairs. Further, while association directors may request and consider input from members of the association, it is ultimately the directors and not the membership that has the legal authority and the responsibility for making maintenance decisions relating to the common areas. The members do have some degree of control relative to the approval of certain special assessments or capital improvements, and loans that may be desired by the board.