Sharpening the Saw On Maintenance Duties.  

I usually start the year out with an E-News on "sharpening the saw" (which  in essence means looking to see where improvements in policies might ease the burden of the board-management). I stress looking at anything that is not working well or that could be improved. This year, I am still starting with the idea of "sharpening the saw" focusing on maintenance obligations.  

Why Do You Start? 

The best time to start is before any problems arise, and the purpose would be to consider formulating a policy specifying maintenance obligations. If the "bomb" has already dropped, then start here:   

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 spends money on something that is not its obligation (or forces owners to fix something not their obligation) it can open up a can of worms. Getting off on the wrong foot with regard to maintenance responsibility can spiral out of control. For example, consider a scenario:  

Owner complains about fencing and asks the board to share the cost of replacing the fence. While the fence is fixed, the gate is also replaced. The board members want to be "good neighbors" and so they pay half the cost from the association funds, and no one thinks any more about it. A few months later, another owner asks, and the Board contributes. The fences surround the owners' yards, and much of it also faces the common area, so the board thinks that is being fair. It happens a few more times with other owners. The board makeup changes each year and when an owner comes in and says "the last board did it", the new board concedes. Then the fencing begins to look like patchwork. A bunch of owners come forward and want the same deal. The cost is quite high. There is not enough money to pay for everyone's fences and gates. Someone says they don't think the association is supposed to pay for the owners' fences. The Board consults an attorney. 

Low and behold, the CC&Rs say that the owners are responsible for the fencing on the lots and that the cost of the "party fence" (the portion with the neighbor on either side) is shared between the neighbors. And low and behold, there is a component on the reserves list for fences but it covers the wrought iron fencing around the swimming pool only (although it's not very well-defined). There is a real shortage of money and a real big issue festering as to whether the board acted properly in paying anyone a share of the fence/gate replacement, whether it should continue the same, or whether it should ask the prior owners who were paid to repay the money the association contributed. Been there? Want to go there? People are complaining that the board fixed some owners fences and argue it must fix theirs as well. There is a fight over what the reserves component means. There is not enough money and a lot of demand. No one thought this through until the problem had escalated out of control, and getting back to square one and proper assessment of responsibility was difficult.  

How does this happen? In this case no one consulted the documents at the outset to see who is responsible for this fencing. No one asked the question as to whether this was something that should or should not have been in the reserves. The board and owners made incorrect assumptions. 

Imagine the stress that could have been averted and the energy and money that could have been saved for the first and subsequent boards if the first time the board was asked, someone had said: "maybe we should get some help and adopt a proper policy." 

Where Do You Start? 

Then, where do you go next ... What does one do when the question comes up?  

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 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?  

[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?  

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 brand new Maintenance Primer on the publications page contains comprehensive information about who fixes what in an HOA or Condominium Association and addresses policy setting. Additionally, ECHO (Executive Council of Homeowners,) 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!    

It is critically important to have resources and you can find lots of information on my website, my two blogs, the free articles, the free E-News, and the educational materials (Primers, Books, Guides and Forms packets). 

And you may want to make sure your friends are signed up to receive future issues of this E-newsletter. Topics  being considered for future E-newsletters include earth- quake and other insurance (like D&O) questions, board elections and cases questioning qualifications, and much much more.