They say, “Good fences make good neighbors,” but I would posit that good neighbors make good fences.
Many associations share fences, pools, driveways and sometimes even buildings. While many shared amenities are subject to easement agreements or covenants that describe what each association’s rights and responsibilities are, those agreements – if they do exist – often lack sufficient clarity and specificity. Cooperation between the associations – good old-fashioned neighborliness – is essential to ensure shared amenities are properly maintained and the costs of the maintenance are allocated equitably.
Consider, for example, a driveway shared by Washington Association and Lincoln Association that is in need of repairs and sealcoating. Most of the shared driveway lies on Washington Association property, but it is the sole means of access to the Lincoln Association property; a small portion of the driveway continues on to Lincoln Association property. There is an easement agreement recorded that allows Lincoln Association residents, guests, vendors, etc., to use the shared portion of the driveway. However, the easement agreement says only that “the Associations shall agree on a reasonable allocation of maintenance, repair and replacement of the driveway, as well as costs associated therewith.” That’s about as helpful as sewing scissors for trimming hedges. That language leaves the two associations with two options: be good neighbors and agree on reasonable allocations, or fight about the allocations every year.
If the Washington and Lincoln Associations take a confrontational approach, they’ll spend time, energy and money arguing about who performs the work, how vendors are selected and how the costs are allocated. Meanwhile, the driveway continues to deteriorate.
If the two associations take neighborly approach, they’ll engage in productive discussions about how to get the job done in a reasonable amount of time for a reasonable cost, and how to allocate the related costs in a reasonable manner. How reasonable! By taking a reasonable approach, the two associations will save time and money, and will maintain a positive relationship between the communities.
Once the two associations agree on those terms, they should work with legal counsel to amend the easement agreement to provide the specificity the agreement now lacks. That will avoid the necessity to revisit these issues time and time again.
How should the work and costs be allocated?
In most cases, the association on whose property the shared portion of the driveway is located (e.g., Washington Association) performs the work. The two associations might consider the following regarding the maintenance, repair and replacement of the driveway:
- Who chooses the vendor to do the work?
- The associations might agree that each association gets a bid, and the lowest bidder is awarded the job. Or, if the two bids are less than X% apart, the association performing the work chooses the vendor. Or they might just agree on a vendor to do the job.
- How do the associations decide the scope of work?
- The parties could share the cost of an inspection by an engineer or a third party that would not be performing the work to determine the scope of work. Or they might just agree on the scope of work.
- How do the associations allocate the costs? This question allows for significant flexibility. Factors to consider might include:
- Do the two associations use the shared portion of the driveway roughly equally? If so, an equal allocation would be reasonable.
- Are the two associations roughly equal in size? If not, allocation based on each association’s relative size might be reasonable.
- Is the work being done only on the portion of driveway both associations use, or will work also be done on the entire driveway – including the portion used primarily by Lincoln Association residents and guests only? If the latter, it may be most reasonable to allocate costs based on the approximate square footage of the shared portion in relation to the total square footage of the project, with the shared portion costs shared equally between the two associations.
The concepts of reasonableness, equity and cooperation will make the process of maintaining shared amenities less contentious and stressful, and will enable those amenities to be something both associations can be proud of.
In other words, please won’t you be my neighbor?
