Navigating Maintenance Responsibilities

Tips on Deciphering Maintenance
Responsibility and Liability
Presented by
Jeremy R. Moss, Esquire
Deborah A. Carter, CMCA, AMS, General Manager
Westridge Swim and Racquet Club, Inc.
2013 Homeowner & Condominium
Leadership Seminar
October 25, 2013
Typical Maintenance Scenarios
• Windows and doors serving units are old and
need to be replaced.
• Unit HVAC systems are failing and need to be
• Dryer vents need to be cleaned.
• Front yards of Lots need to be mowed.
• Trees show signs of decay.
The Question(s)
• Who is responsible for performing
• Who bears the costs performing
General Rule. Section 55-79.79 A of the Act provides, in part: All powers and responsibilities, including financial responsibility, with
regard to maintenance, repair, renovation, restoration and replacement of the condominium shall belong (i) to the unit owners association
in the case of the common elements, and (ii) to the individual unit owner in the case of any unit or any part thereof.
Is the General Rule modified by
the condominium instruments?
What do the documents provide?
Consider provisions of the Declaration,
Bylaws, Maintenance Responsibilities Chart
Responsibility to Perform Work
Responsibility to Pay for Work
Is the component part of the
Unit or part of the Common
Repair is the responsibility of the Association
Unit Owner
Repair is the responsibility of
the unit owner
Unit Owner
What Must Be Considered
• Governing Documents (HOA)
• Declaration
• Virginia Condominium Act (“Act”)
• Condominium Instruments
Maintenance Responsibilities Chart
Plats and Plans
General Rule (Condominium)
Section 55-79.79 A of the Act provides that except as
otherwise provided in the condominium
instruments, all powers and responsibilities (including
financial responsibility) for maintenance, repair,
renovation, restoration, and replacement in the
Condominium belongs to:
• the association for common elements; and
• the unit owner for unit or any part thereof.
General Rule (Exception)
• Unit owner responsible for maintenance, repair,
renovation, restoration, and replacement in Unit
except to the extent that the need for such work arises from
a condition originating in or through the common elements
or any apparatus located within the common elements, in
which case, the association is responsible.
Determine Unit Boundaries
• Condominium Instruments
• Declaration, or
• Plats and Plans (older Condominiums)
• Section 55-79.50 of the Act (if
condominium instruments are silent).
• Plat
Determine Unit Boundaries (Condominium)
• Section 55-79.50 of the Act (if condominium
instruments are silent):
If walls, floors and/or ceilings are designated as unit
boundaries, all lath, wallboard, plasterboard, plaster, paneling,
tiles, wallpaper, paint, finished flooring and any other
materials constituting any part of the finished surfaces
thereof, are part of the unit part of such units; all other
portions of such walls, floors and/or ceilings shall be
deemed a part of the common elements.
Determine Unit Boundaries (Condominium)
• Section 55-79.50 of the Act (if condominium
instruments are silent):
If any chutes, flues, ducts, conduits, wires, bearing walls,
bearing columns or any other apparatus lies partially within
and partially outside of the designated boundaries of a unit,
any portions thereof serving only that unit shall be deemed a
part of that unit, while any portions thereof serving more
than one unit or any portion of the common elements shall
be deemed a part of the common elements.
Determine Unit Boundaries (Condominium)
• Section 55-79.50 of the Act (if condominium
instruments are silent).
All space, interior partitions and other fixtures and
improvements within the boundaries of a unit shall be deemed
a part of that unit.
Any shutters, awnings, doors, windows, window boxes,
doorsteps, porches, balconies, patios and any other apparatus
designed to serve a single unit, but located outside the
boundaries thereof, are considered a limited common element
(exception – master electrical switch).
Modification of General Rule
The governing documents may modify the general
• Bylaws (Condominium) – Maintenance, repair, and
replacement section.
• Maintenance Chart – Sometimes an exhibit to the
Sample Bylaw Provision (Condominium)
Section 5.5. Maintenance, Repair, Replacement and Other Common Expenses.
Chart of Maintenance Responsibilities. Notwithstanding the general provisions for maintenance set forth in subsections (b)
and (c), specific maintenance responsibilities and the costs attributable thereto shall, to the extent set forth thereon, be determined pursuant to the
Chart of Maintenance Responsibilities attached as Exhibit B to these Bylaws.
By the Unit Owners Association. The Unit Owners Association shall be responsible for the maintenance, repair and
replacement of all of the common elements (including the limited common elements) as defined in the condominium instruments, whether
located inside or outside of the units, the cost of which shall be charged to all unit owners as a common expense; provided, however, that the
Board of Directors may elect not to do so if in the opinion of a majority of the Board of Directors such maintenance, repair or replacement was
necessitated by the act, neglect or carelessness for which a unit owner is responsible pursuant to Subsection 9. 1(a); and provided, further, that
each unit owner shall perform normal maintenance on the limited common elements appurtenant to such unit owner's unit and any portion of the
remaining common elements which the Board of Directors pursuant to the rules and regulations has given such unit owner permission to utilize,
including without limitation the items enumerated in subsection (c).
By the Unit Owner.
Each unit owner shall keep the unit and its equipment, appliances and appurtenances in good order, condition
and repair and in a clean and sanitary condition. Each unit owner shall perform this·responsibility in such manner as shall not unreasonably
disturb or interfere with the other unit owners. Each unit owner shall promptly report to the Board of Directors or the managing agent any defect
or need for repairs for which the Association is responsible.
Who is responsible for the cost
of maintenance, repair and
replacement in the event of a
casualty event?
Who Pays v. Who Repairs?
The party responsible for performing repair or
replacement of a component after a casualty is not
necessarily responsible for associated costs, or the
party that is typically responsible for maintenance.
Who Pays?
• Circumstances (what caused damaged?);
• Insurance coverage;
• Liability and other provisions contained in the
condominium instruments;
• The Virginia Condominium Act; and
• Virginia common law
to determine financial liability.
Who Pays v. Who Repairs?
For example:
…the association is responsible for repairing windows, but can assess
costs to repair damaged windows against the unit owner because the
unit owner caused the damage;
or the more complicated scenario:
…the unit owner is responsible for maintaining the unit hot water
heater, but fails to do so. The association is responsible for paying a
portion of the costs associated with resulting damage because the
association’s insurance policy provides coverage.
In assessing financial responsibility, determine
whether the damage is covered by or required to be
covered by the association master insurance policy.
Hint: Pertinent provisions typically can be found in the insurance
section of the Bylaws.
Consider whether carve-outs to coverage apply:
• Personal property
• Mold remediation
The governing documents may provide for
unit owner liability in cases of negligence.
Nido Line of Cases (Condominiums)
• Nido v. Ocean Owners’ Council, 37 Va. 664 (1989).
• Samuels v. Treebrooke Condominium Association,
41 Va. Cir. 109 (1996).
1. Did the unit
owner have a duty
to act?
2. Did the unit
owner breach this
3. Did the unit owner’s
breach cause the
4. Were there actual damages?
The unit owner did act negligently.
The unit owner did not act negligently.
Is the cause of the damages covered by the
proceeds of the Association Master
Insurance Policy?
The unit owner is not responsible for the
cost of the damages.
The Board may assess the
insurance deductible to the unit
owner in accordance with the
condominium instruments
The Board may assess the cost of the
damages to the unit owner in accordance
with the condominium instruments.
Other Considerations
• When in doubt, involve association legal counsel
and insurance carrier.
• Amend condominium instruments to address
ambiguities or inconsistencies.
• Adopt resolution to address negligence per se and
insurance deductible.
Homeowners Association
General Rule (HOA)
• Association responsible for common area;
• Lot owner responsible for Lot or any part
Maintenance Objectives
• Preserve and enhance the property;
• Increase resale value;
• Control long term costs;
• Potentially reduce insurance claims; and
• Ensure compliance with the governing documents
and legal responsibilities.
Creating Facilities Management System
Identify the physical assets to maintain
Analyze maintenance needs
Record Keeping
Maintenance programs
Creating Facilities Management System
• Identify the physical assets to maintain
• Inventory all real and personal property
Creating Facilities Management System (Cont.)
• Analyze maintenance needs:
Inspect the property;
Review building plans;
Review the reserve study;
Review all maintenance records; and
Review product and equipment manufacturer’s
information and warranty.
Creating Facilities Management System (Cont.)
• Record Keeping
• Maintenance calendar;
• Maintenance records/reports; and
• Work order system and means of
response to requests.
Creating Facilities Management System (Cont.)
• Maintenance programs
Routine and preventive maintenance - regular, recurring,
i.e., mowing, cleaning or periodic maintenance (i.e.
inspect irrigation system, HVAC inspections);
Provide for in operating budget;
May be performed by contractor or staff;
Don’t micromanage.
Creating Facilities Management System (Cont.)
• Maintenance programs (cont.)
Requested repairs
Don’t assume responsibility;
If the association not responsible, don’t do it;
Follow the documents - By assuming responsibility, you
assume liability;
Unfair to the membership.
Creating Facilities Management System (Cont.)
• Maintenance programs (cont.)
Scheduled replacement – retain professional to perform
a reserve study at least once every five years.
Compare the list of components with requirements of
governing documents;
Review and update reserve schedule annually (working
document used for planning and budgeting);
Can be used to establish preventive maintenance (Example:
retaining walls and fence).
Creating Facilities Management System (Cont.).)
• Evaluate
Follow up with members, request feedback – survey;
Review financial reports for significant variances and
request explanations; and
Inspect work performed.
Tree limbs create issues when they fall from one
property onto another, causing damage.
Trees (General Rule)
• Owner of the property on which a tree falls is
responsible for damages to his property resulting
from the fallen tree.
• Owner of the property where the tree is located is
not responsible, unless the property owner is found
to be negligent.
• Damages can include clean-up of the tree and
debris, removal of the tree or branches, and other
similar expenses.
Trees (Negligence)
• Courts may find negligence if the Association knew
or should have known that the tree was diseased,
cracked, or showed other signs of possible danger
to adjacent properties.
• Results of an inspection by a qualified arborist
would be helpful to determine whether the Owner
should have known the tree limb posed a danger.
Trees (Case Law)
• Supreme Court ruled in 2008 in Fancher v.
Fagella, a property owner may responsible for
actual damages sustained to an adjacent property by
intruding root system, overhanging limbs or
• If an overhanging limb caused actual damage to a
lot, Owner may be responsible for that damage.
• Prior to ruling, property owners limited only to
Trees (Case Law)
The Townes at Grand Oaks Townhouse Association, Inc. v. Byron
Baxter, reviewed issue of whether cost of removal of fallen
tree could be allocated to an individual owner.
Tree fell from common area onto Lot - Association
attempted to recover the cost of removal from the Lot
Owner after removing the tree.
Court held that the Association was responsible for
maintaining common area trees and that, absent insurance
coverage, the Association was responsible for removal (from
the Common Area), not the individual Lot Owner.