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Who Fixes What in a Condo or HOA?

When anyone in a shared amenity situation has a question about who maintains what, there are a number of things to consider. Naturally, a simple and inexpensive problem may be easier to solve than a complicated one. If there is not a big investment, the sides (board and owner or neighbor-to-neighbor) are less inclined to fight about it. One or the other may just make the repair and let it go. However, that can lead to issues in the future. Once a board establishes a pattern of fixing something it is not responsible for, or requires some owners to fix something they are not responsible for, and then finds out that it was an improper assessment of responsibility, it can open up a can of worms. Getting off on the wrong foot with regard to maintenance responsibility can spiral out of control.

If you want to see an example of how things can spiral out of control, sign up for the E-news on my website. A full E-newsletter on the subject is coming out next Wednesday and it will be posted on the website a few days after that in the E-news archives.

The things to consider in sorting out responsibility in any maintenance dispute or question include:

[Ownership of the item] It is important to know who owns the property that is damaged. The maintenance and repair obligation does not always fall on the owner, but establishing this basic fact will surely come into play if there is no documented responsibility in the HOA or condo association documents.

[Governing Documents] What, if anything, do the governing documents for the HOA or Condo Association (which include Articles of Incorporation, Bylaws, and CC&Rs; or Rules and Regulations, if these items exist) say?

[California - or other state's - Law on the Subject] What does the law (including statutes and cases) say?

[Location of Damage] Is the damage or work that is needed in a common area or in an exclusive use common area (area accessible or used by only one or a few, as opposed to all owners), or in an individual?s separate interest area (separate interest means that part of the property that is owned by an individual such as a unit or on a lot)?

[Cause] What or who caused the problem? Can the cause even be determined? Are there disagreements as to the cause? Was negligence, carelessness, or intentional conduct the cause?

[Past Practice] Has this problem come up before and how was it handled then? Are there any issues likely to arise about what has been done in the past?

[Legal Exposure] Is there any advantage or disadvantage, problem, or legal exposure if the association does the repair and it turns out that it was not the responsibility of the association, or vice versa with regard to an owner(s) making the repair?

[Precedent] Would the association benefit by retaining control over the repairs and what is to be done, or set an undesirable precedent?

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It is important to consider all of these things ?and then ? there is a lot more to doing the right thing and averting disaster. The NEW! Maintenance Primer available on my website at www.californiacondoguru.com contains comprehensive information about who fixes what in an HOA or Condominium Association and addresses policy setting. Additionally, ECHO (Executive Council of Homeowners, www.echo-ca.org) recently published Part I and will publish Part II of an article on the subject written by me in the ECHO JOURNAL. (And ECHO is a great resource - check out the annual seminar coming June 19 ? what a place to go if you want to get smarter about living in or running a homeowners association.)

Don?t be caught ?in the dark? and wonder who is responsible for the lights!

Full post as published by California Condo & HOA Law on January 16, 2010 (boomark / email).