What Owners Can Do If HOA Common Areas Are Not Maintained

Steps homeowners can take if the HOA is falling down on the job of maintaining the property.

Are you a homeowner in a planned community or condominium building with a homeowner’s association (HOA) that isn’t doing a good job at maintaining the common areas? Perhaps the elevator to your floor hasn’t worked for a month, the common parks are filled with overgrown grass and dry, dead landscaping, or the fitness room contains only 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, for example, to:

  • complain to the board of directors
  • remove one or more members of the HOA’s board of directors
  • amend the governing documents, or
  • start a lawsuit against the HOA.

Understanding Your HOA's Upkeep Obligations and Powers

Before launching ahead with demands, it's worth double-checking just what your HOA's obligations are. Is it really supposed to stock the gym with equipment, for example?

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 regular maintenance, the HOA might also need to take care of repairs, such as a 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 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 must ordinarily collect periodic dues or, in certain circumstances, special assessments, from each homeowner in order to pay these costs.

Approaching the HOA Board With Your Concerns

If the HOA is seemingly not meeting the common area maintenance and repair obligations it’s responsible for, try to resolve the problem through (civil!) discussions with the HOA. Meet with the board of directors to discuss the problem.

In such a meeting, you'll want to start by listening to whether there's a valid reason for the HOA's failure to properly maintain the common areas. This might inform you about the timeline for fixes and reassure you that they're in the works.

But perhaps there isn't a good reason. To bolster your case, 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 background of the situation, and the HOA’s reasons for the lack of maintenance, will put you in a better position to assess what further action you might wish to take.

Removing an HOA Board Member

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). You'll have to step carefully, because the board members are likely all fellow homeowners, whom you'll be living near for potentially years to come.

If you succeed in removing an uncooperative or incompetent board member, however, it could ultimately result in a more effective HOA, one which keeps the common areas properly repaired and maintained.

Amending the HOA's Governing Documents

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 might 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.

Bringing a Lawsuit Against the HOA

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 based on the legal theories of breach of fiduciary duty, breach of covenant, negligence, or a combination of these.

Homeowner’s Lawsuit Against HOA for Breach of Fiduciary Duty

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 has failed to maintain the common areas because it isn't 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 HOA's responsibilities. Board members must be reasonably 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 this 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.

Homeowner’s Lawsuit Against HOA for Breach of Covenant or Negligence

If the governing documents expressly give the HOA the responsibility to maintain the common areas (as 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 these 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 performing 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.

Get Help From an Attorney

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.

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