What to Do if Your HOA Common Areas are not Maintained

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There was a reason you moved out of the neighborhood located on a public street. Perhaps your old neighbor does not have your taste for a well-kept yard, or maybe he had terrible taste in house color. Regardless, it is frustrating that you have no control over the actions (or inactions) of your neighbors contributing to the blight on your old street. Worse, these irresponsible owners may have even brought down the value of all the other homes in the neighborhood.

Today’s homeowner buys a property subject to the jurisdiction of a private HOA board to avoid just these issues. Unlike living on a public street where the properties have no relationship to one another (other than being subject to city/state ordinances), living in an HOA neighborhood entails responsibilities for all member homeowners to the community. Additionally, and unique to HOAs, the elected board of directors owe a special responsibility to all the dues-paying homeowners, called a fiduciary duty.

We have previously written in depth about the different elements of this fiduciary duty, and if you are unfamiliar, that article is certainly worth your time. Simply for this discussion, we just need to know that because of this fiduciary duty that the board owes to member homeowners, the board has a legal obligation to maintain common areas with the same care and diligence that they would apply to their own private property.

Bottom line: it is not an option for your HOA board to neglect the maintenance of HOA common areas. Yet, just because you are in the right about the board's negligence, it is still imperative to pursue a resolution strategically if you have any hope of a swift resolution. We will quickly explain how to best sequence your actions.

1. Learn the HOA Rules

It is very likely that your HOA board is responsible for maintaining common areas, but we really do not know for sure until we get look at the HOA governing documents. Like any other non-profit corporation, the HOA board is only permitted to act when expressly granted the power by the community bylaws or CC&Rs, (covenants, conditions & restrictions). Within all this legal language is evidence you need to prove that the HOA board is responsible for the unmaintained common area in question, whether it be a pool, community park, lighting, or common elevators (as examples).

2. Pursue a Resolution with the Board

Once we have the relevant rules that show that the board is obligated to maintain the common area in question, it is best to begin to document your legal issue. Write a professional letter to the board referencing the relevant HOA bylaw or rule and request that they take immediate action to fix the issue. Request a hearing with the board or attend the next meeting and directly ask the board to explain why the common area is not being kept up as the community rules prescribe.

It is from this point that you must make an important strategic decision; it will depend upon what the board has to say in defense of the ongoing problem. Let’s first assume the best-case scenario that the board is acting in good faith and there just was an unknown issue that comes to your attention at the meeting. For example, perhaps the common area hot tub is not functioning, and the delay in fixing the issue has to do with the discovery of a much larger plumbing issue that needs to be addressed first. These are your neighbors—if there’s an opportunity to easily resolve the problem, it is worth trying. In this example, perhaps you just need a timetable and assurance that the hot tub is being fixed with all due expediency.

Yet, it is when board members are acting nefariously that we need to act judiciously. Depending upon the specifics, you may need to pursue an outside lawsuit to resolve the claim—but we will get to that in a moment. First, perhaps the issue isn’t a governance issue, but just a problem with one director. Perhaps there is a super-square fellow on the board that connects hot tubs to the precipitous fall of American culture. The hot tub breaking down is the best thing that could have happened to this director, and in turn, he is slow-walking the repairs.

We may not need to file a lawsuit yet. Remember, the goal isn’t to take vengeance for the common area neglect, but to just get your association to fulfill its obligations as soon as possible. Lawsuits are costly and time-consuming—they are always best to avoid when possible. If, like in this example, a resolution could come quickly through pushing for the removal of a board member, this should be attempted first. While researching the relevant rules during step 1, you will want to learn the impeachment procedures as well. Hopefully, there is an election in the short-term; that is the simplest means of removal.

3. File a Lawsuit

Now if the issue with the common areas relates to financial mismanagement of the HOA budget, the problem is more serious and complicated. Are they leaving the common area unmaintained because the board has run out of money to fix it? Or perhaps there has been negligent management of the reserve fund, and the board doesn’t want to issue a special assessment. Regardless, these are big problems and if either is occurring the board members would be in violation of their fiduciary duties to their other members.

If you see financial mismanagement with your HOA finances, it is likely time to retain legal counsel. And time is of the essence. Eventually, the malfeasance of the HOA board will be addressed by the courts, but the community members will still be responsible for repairing the unmaintained common area. Allowing the problem to fester will make the repairs more expensive for each homeowner, as will be reflected in the special assessment assigned to all member homeowners.

Although unpleasant, sometimes an HOA dispute is so serious we need to get lawyers involved. Hopefully, we were able to help you discern when that will be the case. Thanks for reading.