As we approach spring and look forward to the annual spring walk-through and start planning maintenance, repair and replacement projects for the coming year, boards and managers should take a step back and ask themselves one simple but important question: Which maintenance obligations belong to the association and which are the responsibility of the individual homeowners? If you are not certain about which components of the property are or are not the association’s responsibility, you cannot properly plan for current or future maintenance, repair or replacement projects. Thus, before you even attempt to schedule your spring walk-through, it is a good idea to make sure that you have a good handle on the maintenance responsibilities within your association.
Maintenance responsibilities can vary greatly among associations. The division of responsibilities in a condominium will be different than in a townhome, single family or cooperative association. Even among associations of the same type, there can be big differences in the maintenance responsibilities as set forth in the governing documents. Therefore, you should not assume that one association is the same as another or that the way that maintenance has been handled in your association in the past is correct.
Here are some things to keep in mind when determining who is responsible for what maintenance. First, you need to understand what type of association you are dealing with. Remember that not all townhome-style properties are actually townhome associations and could actually be condominiums or cooperatives. The best way to determine what type of association you have is to look to the definition of the unit or unit boundaries in the association’s declaration. Unit boundaries in a condominium are typically defined as the interior unfinished surfaces of perimeter walls, floors and ceilings.[1] In a townhome or planned unit development, the unit boundaries are generally described as being the platted lot lines, with no upper or lower boundary. In a cooperative, the association typically owns all of the real estate and leases portions of it to its members, so the unit boundaries are less defined and generally less important when it comes to determining maintenance responsibilities.
After you determine the type of community you are dealing with, you will then want to make sure that you understand what parts of the property, if any, constitute common elements or limited common elements, and what is part of the individual unit. Common elements are everything that is not part of the individual units. Thus, in a condominium, the common elements will often surround and run between all of the individual units and will include not only pipes and wiring inside the perimeter walls, but also the studs and even the unfinished walls, ceilings and floors themselves. On the contrary, depending on how the lots are platted, a townhome or planned unit development may not have any common elements, or the common elements may be defined as a separate lot away from all of the living units where certain amenities are located. This means that there may also be little or no limited common elements in these types of associations, since limited common elements are portions of the common elements that are assigned for the exclusive use of a particular unit. Decks, patios, balconies, steps, driveways, and other similar components are only considered to be limited common elements if located partially or entirely outside the unit boundaries. Otherwise, they are part of the unit. If you are not sure where the platted lot lines are in relation to the footprint of the dwellings or other buildings in your association, you may want to consult your plat map or check with the county assessor.
Next, you will want to examine the portions of your governing documents that discuss maintenance responsibilities. The association will almost always be responsible for maintaining common elements, to the extent that there are any. In a condominium, this means that the association will likely be responsible for the sheet rock or plaster on perimeter walls and ceilings and subfloors that form the boundaries of the units, as well as all other portions of the property that are outside of the units. The association may also be responsible for maintaining certain parts of the units themselves. Those portions of the unit for which the association is responsible will be defined in the declaration and/or bylaws, and are not always clear. In townhomes or planned unit developments, the association is typically responsible for certain exterior building surfaces, such as roofs, siding, gutters and downspouts, and for grass and other landscaping items. The association may or may not be responsible for driveways and aprons, walks, steps, or other exterior components, including windows and doors. If your documents are unclear, a legal opinion may be necessary to determine what items are or are not the responsibility of the association. Except to the extent that the association may be responsible under the governing documents, maintenance of the units, however defined, will typically fall on the individual unit owner or, in the case of party walls forming the boundary between two units, on the adjoining unit owners. The exception to this rule would be in the case of a cooperative, where the association will generally be responsible for maintenance of the units as well (since the units and all real estate is owned by the association), except to the extent that the governing documents indicate otherwise.
Finally, it is important to understand the difference between who is responsible for performing various maintenance obligations and who is responsible for paying for it. The association will generally be responsible for performing maintenance (including repair and replacement) on common elements and limited common elements, as well as any other portions of the unit as may be defined in the governing documents. However, the association may be able to assess some of these costs back to the unit owners. Associations governed by the Minnesota Common Interest Ownership Act (“MCIOA”) are required to assess back to the unit owners any costs associated with the maintenance, repair or replacement of limited common elements unless their declaration provides otherwise. Additionally, if governed under MCIOA or provided for in the governing documents, associations may assess certain common expenses benefitting fewer than all owners against just those owners benefitted. This does not mean that you can charge homeowners for maintenance or repair costs that are the association’s obligation just because you are not repairing or replacing all windows, doors, decks, etc. at the same time. However, if decks are the association’s responsibility (and are not limited common elements), but not every unit has a deck, then the association may be able to use this provision to assess the costs of maintaining, repairing or replacing decks against just those units that have them. Regardless of who ultimately pays for maintenance, the association should never delegate its responsibility to perform maintenance to the homeowners or allow owners to perform any maintenance to the common elements (including limited common elements) or other portions of the property that are the association’s responsibility without first discussing it with your attorney and your insurance agent to ensure that the association will be covered if a homeowner is injured while performing said maintenance or if the work performed by the homeowner or his/her contractor is defective.
Some associations find it helpful to put together a matrix or spreadsheet that lists out the various components of the property and identifies which ones are the association’s responsibility to maintain, which are the responsibility of the individual homeowner, and who pays for what. Having this matrix not only helps when planning projects, but it can also help when preparing budgets and reserve plans. However, it will be of no help at all if it is not accurate. Therefore, if you have a maintenance responsibility chart, or are thinking of preparing one, make sure that your association attorney reviews it to ensure that the division of responsibilities is in line with applicable law and your governing documents.
[1] The actual unit boundaries may be defined differently in your association, so you will still need to check your governing documents to determine what is part of the unit and what constitutes common areas.
