Frequently, a Board member or property manager of an Indiana community association asks me, “Who is responsible to provide repair and maintenance in this situation?”

 

Whether the roof is leaking, a water line is busted, or a window needs to be cleaned, questions of who provides maintenance in a community governed by a homeowners association arise regularly. In a simple sense, a community association is formed for the purpose of maintaining the common areas within the community, while the owners are responsible for maintaining their own homes or units. However, defining what constitutes the common area, what constitutes part of the common area for purposes of maintenance only, and what constitutes the home or the unit often becomes an exercise in literary analysis and interpretation.

 

In any type of community, whether a condominium, townhome community, or single-family home subdivision, the Declaration of Covenants is the first place to look when attempting to determine the maintenance responsibilities of the association and the owners. The Declaration is the main governing document on file with the county recorder that establishes the association, sets forth certain covenants and restrictions, such as an owner’s obligation to pay assessments, and contains provisions that define the association and the owners’ responsibilities. Importantly, the Declaration should describe and define what constitutes the common area and what maintenance duties the association has for the common area. The Declaration should also outline what responsibilities owners have to provide maintenance.

 

For typical single-family home subdivisions, questions of maintenance will often be straightforward. The owners own their lots and homes and are responsible for all maintenance of the same. The association owns the common area lots and is responsible for the maintenance, care, and insurance of the same. Most often, issues arise when an owner has not properly maintained his or her lot, and the association requests that the owner to perform proper lot and home maintenance to preserve the aesthetic appearance of the community. Additionally, in certain circumstances, the association’s governing documents will allow the association to enter onto an owner’s lot to perform maintenance if not performed by the owner, which is a process called “self-help”.

 

In these situations, the question is not who is responsible for maintenance, but rather, how will the association force an owner to perform lot maintenance. Oftentimes, if an owner does not perform proper lot and home maintenance to the standard outlined in the governing documents, the association may pursue legal action to require the owner to perform the needed maintenance. By pursuing legal action, the association can obtain a court order, called an injunction, requiring the owner to perform the required maintenance, and the association may even, through the court order, obtain permission to enter onto the property to do the work and bill the owner the costs. Although these situations are rare and legal action should be pursued as a last resort, the association will usually have the power in its governing documents to hold an owner responsible for their maintenance obligations.

 

For condominiums, townhomes, and patio homes that do not fit into the typical single-family home subdivision model, questions of maintenance are much more difficult to answer and come up much more frequently in the context of what is and is not the association’s responsibility. In condominium communities, the owners own the common areas as tenants-in-common, and the common areas will include everything in the community except for what is defined as the condominium units in the Declaration. Even though the association does not own the common areas in a condominium, it is tasked with the responsibility for maintaining the common areas on behalf of the owners. Many times, condominiums are marketed and sold to owners as “maintenance-free living”, implying that an owner will need to provide no maintenance to his or her condominium. However, whether an owner will need to perform maintenance in a condominium and to what extent all depends on what the governing documents for that association specifically say.

 

By and large, in a condominium, the association maintains and insures the common areas, which typically include all building exteriors, hallways, elevators, streets, parking areas, lawns, entrances, and amenities such as pools, clubhouses, and tennis courts. Conversely, the owners are responsible for maintaining and insuring everything within their condominium unit and are usually required to provide maintenance to the limited common areas reserved for their exclusive use, such as patios or balconies. However, sometimes the governing documents are not as clear as they should be on items that could be considered part of a common area and part of a unit, such as a window, attic, or door. The documents also are sometimes not clear on the responsibilities of the parties when interior damage is caused by an exterior event, such as a roof leak. In these instances, the association’s Board of Directors should carefully review the governing documents and determine if amendments are needed to ensure there is no confusion over who is responsible for maintenance.

 

For homeowners associations that provide more maintenance than a typical single-family home subdivision, but are not condominiums, maintenance questions can be some of the most challenging issues for the Boards. Townhome, patio home, and planned unit development associations are typically required by the governing documents to provide maintenance to the common areas owned by the association. In addition, the associations are normally required to provide lawn care, landscaping, and certain maintenance to the homes in the community. But in these instances, the lawns and home exteriors are not common areas; they are part of the lots individually owned by the owners. Thus, the document provisions outlining the association’s maintenance duties will be extremely important to understand for what the association is or is not responsible.

 

Specificity is the key to understanding what constitutes the association’s maintenance responsibilities in a townhome community or planned unit development. If the governing documents only state that the association is responsible for lawn mowing and irrigation, but is silent on whether the association is to apply weed removal to an owner’s lot, then the association should do only what the document requires unless it amends the documents or adopts rules and regulations to supplement the documents. Similarly, if the governing documents state that the association is responsible for roof repair and maintenance, but requires the homeowners to repair, maintain and replace the gutters, the association should not replace the gutters without amending the governing documents, since the responsibility for gutters is the owners’, not the association’s. Ultimately, since the association is a corporate entity, the association can and should only perform those actions and duties authorized in the governing documents. As such, the best practice is to limit the association’s maintenance responsibilities to what is specifically outlined in the governing documents. If the governing documents are ambiguous, too unspecific, or include provisions that do not work for the community, the association should explore amending the documents to better fit the community’s needs or should consult with legal counsel to better understand the document provisions.

 

In the end, the main purpose for the association is maintenance, whether it is maintenance of the common areas only or maintenance of most of the community. Associations are formed to provide maintenance to benefit the look and appearance of the community and improve property values. Different types of associations have different types of maintenance responsibilities, but all associations and their boards should carefully review the maintenance obligations outlined in the governing documents. In doing so, the association, along with the owners, can ensure that they are performing the maintenance duties required leading to fewer questions as to who is responsible for what.

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