Are you a homeowner in a planned community or condominium building with a homeowner’s association (HOA) that isn’t maintaining the common areas? Perhaps the elevator to your fourth floor unit hasn’t worked for a month, the common parks are filled with overgrown grass and dead landscaping, or the fitness room only contains a few broken down exercise machines. You know the HOA is responsible for fixing this mess, but what can you do about it?
Actions that a homeowner might take to make an HOA maintain the community common areas depend on the reason the HOA is not already doing so. The homeowner might want to attempt to remove one or more members of the HOA’s board of directors, amend the governing documents, or start a lawsuit against the HOA.
Before determining the best course of action, you need to know you just what your HOA's obligations are. Look at its governing documents -- the articles of incorporation, bylaws, declaration of covenants, conditions, restrictions, and easements ("CC&R’s" or "declaration") -- and any other rules and regulations. You should have received a copy of these when you purchased your property. If not, you can get them from your HOA or from your county’s real estate records.
In most developments, maintaining, repairing, and replacing the common areas are among the HOA's major duties. Depending on the community amenities, the common area maintenance responsibilities might include such things as heating and lighting a common clubhouse, maintaining the community pools and elevators, and providing landscaping services for the common parks. In addition to reguar maintenance, the HOA might also need to take care of repairs, such as the blown-off clubhouse roof or broken-down fitness equipment, or replacements, such as of an old, unsafe elevator.
Typically, the governing documents require the HOA to adopt an annual budget setting forth the anticipated costs to maintain the common areas (and also an amount to hold in a reserve fund for common area repairs and replacement). The HOA generally must collect periodic dues (or, in certain circumstances, special assessments) from each homeowner to pay for these costs.
If the HOA is apparently not meeting the common area maintenance and repair obligations it’s responsible for under its governing documents, you should attempt to resolve the problem through (civil!) discussions with the HOA.
Meet with the board of directors to discuss the problem and find out why the HOA is not properly maintaining the common areas. Bring along the provisions of the governing documents that set forth the HOA’s maintenance responsibilities. Also bring evidence of the neglect you’re concerned with (such as photos of overgrown common parks or a record of the date the elevator broke down).
Ideally, the board will note your complaints and fix the problems. If not, discovering the HOA’s reasons for the lack of maintenance will leave you in a better position to assess what further action you might wish to take.
If you discover that the HOA is not doing its job because of an incompetent or nonperforming board member, you might consider taking steps to have that member removed. For example, if one board member is uninformed about the true costs of common area maintenance and refuses to allow a needed budget increase, or fails to attend the board meetings required for the board to get its work done, removing this member from the board might be a good option.
The procedures required to do this are likely set forth in the HOA's governing documents. Unfortunately, this is commonly a complex and slow process, requiring the vote of the other members of the board or all the other members of the HOA (all the homeowners).
If you succeed in removing an uncooperative or incompetent board member, it could result in a more effective HOA, which keeps the common areas properly repaired and maintained.
You might discover that the HOA is unable to maintain the common areas because of a problem with its powers under the governing documents. For example, perhaps the HOA cannot get the common clubhouse painted because it does not have the authority to hire a painting contractor. Or, maybe the HOA doesn’t have enough money to perform necessary maintenance because the governing documents require a vote of 100% of the members (homeowners) to raise dues or levy a special assessment, and it cannot get the vote.
In such a case, amending the governing documents might be an option -- most likely the CC&Rs, if it's a matter of giving the HOA more power to maintain the common areas or changing the procedures for raising dues or making special assessments.
Most governing documents set out the procedures for amending them. CC&R’s are not usually easy to amend. A vote of all the members may be required, which can be difficult to obtain.
However, if all the requirements are met, you might, for example, be able to amend the CC&R’s to give the HOA the right to raise dues with only a vote of the board. Or the CC&R’s might be amended to specifically give the board any powers it needs to perform its common area maintenance responsibilities, such as hiring an outside contractor.
Another option for a homeowner seeking to make the HOA take action might be to initiate legal action. Your rights in such a lawsuit will depend on whether or not the HOA is performing the duties and functions required of it in the community’s governing documents (as well as any requirements under state and federal law).
For example, a homeowner might initiate a lawsuit against the HOA for breach of fiduciary duty, breach of covenant, or negligence, or a combination of these.
A homeowner has the right to sue the HOA for breach of its fiduciary duties. To fulfill these duties, the HOA must exercise ordinary care, in a reasonable and good faith manner, in the performance of its duties.
An example of a breach of fiduciary duty might be found, for example, if the HOA is failing to maintain the common areas because the HOA is not properly managing the development’s finances (perhaps, instead of putting the money from dues toward necessary maintenance, the HOA invested the money on a board member’s stock tip).
A homeowner might also sue an individual board member for breach of fiduciary duty. Board members must exercise reasonable diligence in carrying out the responsibilities of the HOA. Generally, board members must be informed and knowledgeable about the governing documents, and participate in required HOA meetings.
A board member might be liable for breach of fiduciary duty if he or she fails to perform any of these duties in a reasonably diligent and prudent manner. For example, a board member who never attends meetings or is consistently poorly informed about important HOA matters might be in breach of his or her fiduciary duty.
Board member must also act in the best interest of the community, not for individual gain or self-interest. For example, a homeowner might have a claim for breach of fiduciary duty against a board member who votes to invest the dues in the stock market instead of maintenance, if the board member had a personal stake in that stock.
If the governing documents expressly give the HOA the responsibility to maintain the common areas (which is usually the case) and the HOA is not doing so, the homeowner might have a basis for a lawsuit for breach of covenant.
The chance of success in this type of lawsuit will depend on the exact language of the governing documents. The more specifically the governing documents describe the HOA's responsibilities, the better. For example, if the CC&Rs state that “…the HOA must keep all the fitness room equipment in good working order,” the homeowner will have a better case than if the CC&Rs merely state that “…the HOA must maintain all common areas.”
Additionally, homeowners have the right to expect the HOA to exercise ordinary care in the performance of its duties. If the HOA fails to act in a reasonably safe and prudent manner, a homeowner might have a claim for negligence. For example, if an owner was trapped for hours in an elevator that wasn’t properly maintained, or if an owner falls and breaks a leg because the HOA consistently failed to clear the ice from the common area sidewalks, the owner might successfully sue for negligence.
Other bases for lawsuits might be possible, depending on the facts of the particular case. Lawsuits tend, however, to be time-consuming and expensive, and their outcome is always uncertain.
It can be difficult as a homeowner to determine the best course of action if your HOA fails to maintain the common areas in your development. After investigating the governing documents and meeting with the HOA (or even before), you should consult an experienced attorney in your area to assess the facts of your situation, and get advice on how best to proceed.