As an owner of a condominium, townhouse, or other unit in a planned community that's governed by a homeowner's association (HOA), you were no doubt looking forward to a life of little or no lawn-mowing, roof-fixing, and so on. The HOA is, after all, supposed to use your monthly fees and any special assessments to maintain and when need be, repair or replace elements of the "common areas." Depending on the HOA's exact legal structure, that might mean dealing with nearly everything outside your unit's walls, and possibly a few things within. But what can you do if the HOA is falling down on its job?
As we'll discuss here, your next likely steps (escalating from one to the next) include:
- double-checking that the HOA is truly responsible for the issue in question
- complaining to the HOA's board of directors
- taking steps to remove one or more members of the HOA board
- amending the HOA's governing documents, and
- perhaps ultimately starting a lawsuit against the HOA.
Check How Far the HOA's Upkeep Responsibilities Extend
There's no sense putting on battle gear if the issue is not really the HOA's to deal with. If, for example, your unit's windows are cracked from age, you'll need to read the fine print on whether those windows are yours or are part of the property that's held in common. Or, if your children's outdoor game of handball against your walls have damaged the siding or stucco, chances are you'll discover that the responsibility to pay for repairs falls upon you.
Where does one find this fine print? Take a look at your HOA's governing documents—specifically its articles of incorporation, bylaws, declaration of covenants, conditions, restrictions, and easements ("CC&R's" or "declaration")—and any other rules and regulations. Copies of these should have come your way when you bought your unit. (If not, ask the HOA for them). They can be long and complex, however, so brace yourself, or hire a lawyer to help you interpret the language.
For starters, you're likely to read about the basic, ordinary requirement that your HOA maintain, repair, and replace features and elements of the common areas. Keep reading for details and limitations. Depending on the physical layout and features of your community, these responsibilities might cover everything from staircases, elevators, and the roof to a garden, golf course, hot tub, or sauna.
The HOA might be expected to not only perform regular maintenance, but also handle repairs, such as a malfunctioning pool filter, a falling-down railing, or a cracked streetlamp shade.
Register Your Complaints About Maintenance With the HOA Board
You've no doubt made comments about needed repair or the HOA's failures to repair to others, such as neighbors. Maybe some of them are board members, too. But have you really expressed your concerns in a manner that follows official procedures and commands attention? Perhaps there's a way homeowners can register everyday complaints (such as "there's a crack in the sidewalk in front of the community house"), in which case you'll need to do that before going any further.
Or, particularly if you've exhausted such possibilities, you might need to meet with the board of directors to discuss the problem. This could involve either scheduling a separate meeting or asking to be put on the agenda for a regular meeting, whatever the HOA's bylaws and rules dictate.
Prepare ahead of time for the meeting by copying or listing citations to whichever portions of the governing documents establish the HOA's maintenance and repair responsibilities. Also bring evidence of the problem you're worried about, such as photos of the unused, uncleaned, algae-filled pool.
Be ready to listen to whether there's a valid reason for the HOA's failure to properly keep the common areas maintained or in good repair. Perhaps the usual contractor has gone out of business, and the HOA was simply waiting for a final bid from new contractors before moving forward.
If no such excuse is forthcoming, make sure you've stated your case fully, politely, and succinctly. Expect the HOA board to take official note of your complaints, look into the matter further, and hopefully fix the problems.
Take Action Against an Individual HOA Board Member
An HOA board is made up of people, mostly from within the community and probably serving on a volunteer basis. That can lead to varying levels of expertise and personal attention to the task they've undertaken. If you're aware that a particular member of the board is the main source of the problem, there are steps you could take to have that person removed. For example, if the board member keeps forgetting to attend meetings, leading to a loss of quorum and inability to make decisions, removal from the board position might be best for all concerned.
Unfortunately, removing a board member is anything but a quick fix. It might require a vote by all board members, or even all HOA homeowners. Expect factions to form and possibly personal enmities to develop, which could last for years. Nevertheless, it might clear the logjam that is blocking much-needed action.
Seek to Amend the HOA's Governing Documents
Perhaps once you read the fine print in your HOA's CC&Rs or other rules, you'll realize they don't fully or adequately address the board's responsibilities, or are inherently confusing.
Let's say, for instance, the HOA cannot get the pool filter repaired because it does not have the authority to hire a pool contractor. Or, maybe the HOA doesn't have enough money to fund the needed maintenance because homeowners haven't been paying their dues, and they're having to foreclose on those people.
As always, the governing documents themselves are what you'll need to look to regarding procedures for making amendments. Expect some hurdles to clear. You might need to get all the members to vote in favor of the amendment, after educating them as to the importance of clarifying what probably sounds like arcane language.
Last Resort: Suing the HOA Over Failure to Maintain and Repair
A final option when pushing an HOA to fulfill its maintenance and repair responsibilities is filing suit, either against the HOA as a whole or against the board members who aren't doing what they should. The relevant legal theories typically include breach of fiduciary duty, breach of covenant, negligence, or a combination of these.
Speak to a lawyer to evaluate the strength of your legal claim and whether it will lead to the outcome you hope for.