Resident vs. HOA Responsibility Taking Care of Business

Resident vs. HOA Responsibility

Like snowflakes, no two homeowner associations are exactly alike. New Jersey's laws governing HOAs allow for a good deal of leeway in how a condo, co-op or town home community decides to run things. One of these areas is in the care and upkeep of outdoor areas.

Obviously a large part of New Jersey's landscape consists of spacious suburban communities, which generally allow for a wider array of property configurations than might be practical in an urban setting, where multifamily housing primarily consists of vertical apartment buildings with little or no space in between. With different types of communities existing close to each other, it's beneficial for all parties involved when unit owners and community management know exactly what they are responsible for.

Something in Common

In just about every homeowner association, there are common elements for which the association is virtually always responsible. Many times, the definition of a common element is clear: swimming pools, roadways, parking lots, tennis courts—there isn't an association anywhere that would require an individual homeowner to be responsible for the upkeep of a tennis court.

But there are several factors that can create circumstances where who is responsible for what can vary from property to property—one of which is limited common elements.

"You may get into what are called limited common elements," says Kenneth Lipstein, an attorney in Westfield, " which are often stairways, walkways and hallways that are accessible only to some owners. There might be a stairway that only services a couple of units—those are generally subject to the care and responsibility of the association."

Hit the Decks

Lipstein says another potential gray area is outdoor decks. Since decks tend to be private and serve only one unit, Lipstein says an association can decide whether maintenance of them will be the homeowners' or the association's responsibility.

"But there are practical questions [about] whether the association wants to take that as its responsibility or not," says Lipstein. "Because even if the deck is arguably the responsibility of the individual unit owner, unless the association maintains some responsibility over them, private decks might be refurbished or rebuilt in a non-uniform fashion, which can really detract from the aesthetics [of the property]."

So if a community board wants all decks to be made of the same material, or all be the same color, or even painted different colors in a manner that creates an intended color scheme, the board should take responsibility, he says.

"It's my opinion that decks should be under either the direct control and responsibility of the association—or at least under its supervision," Lipstein says. "And even if it's the unit owners' responsibility to maintain or rebuild the decks, it's my feeling that that has to be under specifications and supervision of the association."

It's important that whatever decision is made is spelled out clearly in the association's governing documents.

"What happens to a deck could not only affect the owner of that deck, it could affect other people just as a matter of pure aesthetics if it's not maintained," Lipstein says. "Also, decks sometimes involve structural elements of the building and often are a source of water infiltration, which can affect surrounding units as well."

Fee-Simple Homes

According to David Ramsey of Ramsey Berman PC in Morristown, there are two basic forms of ownership in a townhome-type setting: condominium style private ownership or what is called a "fee-simple" arrangement, where the dwelling stands alone and there's a small plot of land that goes with it.

"In a condominium, essentially all of the structural components of the building and the entire exterior are the maintenance responsibility of the association," Ramsey says. "So if there's a roof leak, if the siding needs painting, if there's a structural defect in the foundation, there's literally never a question of whether the association is responsible for that."

A fee-simple townhome, however, runs somewhat differently, in that the association is responsible only for what its documentation say it's responsible for. Ramsey says most fee-simple townhome documents will require the association to provide some exterior maintenance—such as painting—in order to create a unified look. But things like roofs, which are structural, are frequently—and Ramsey emphasizes the word "frequently"—the responsibility of the owner.

"There are fee-simple townhouses where the association assumes more responsibility because they want to make sure there's a uniform appearance to all the buildings. They don't want one guy replacing his roof, and another guy not replacing his roof, and the community ending up with a patchwork of roofs," Ramsey says. "So there are some fee-simple townhouses where the roof is the association's responsibility, but it's up to the draftsman of the documents, and the owners as they amend documents later, to decide exactly how far they want the association to go."

If a fee-simple community does decide to leave responsibilities such as roof maintenance to the homeowners, Ramsey says the association has little say in how the unit owner goes about getting his or her roof repaired.

"In a condo setting, [when] someone moves in and wants to do something that the association is willing to permit - like install a satellite dish, for example—as a board you can say, 'This guy is on a common element, so he has to have the right insurance, the right contractor, and so forth,'" Ramsey continues. "You really don't have that argument in a fee-simple townhouse, because the association is not being impacted."

"I think the association can have rules in regards to the quality of the roofing that has to go on there," adds Lipstein. "The shingles might have to be a certain weight, or they might have to be cedar or asphalt—they can have those aesthetic rules."

Is the Grass Greener?

When it comes to maintaining lawns and gardens, the responsibility usually lies with the association. In a condominium-type setting, the association will always be responsible for the care of all grass and shrubbery—even those that go right up to an owner's door.

Even in fee-simple homes, the association often handles lawn maintenance. An exception is in those communities that allow fences.

"Once you allow the owners to erect fences in their backyards, there's no way a landscaper will come in and take responsibility for closing the gate, or even bringing their equipment back there," says Robert Hastings of MAMCO Property Management in Mount Laurel. "So a lot of associations write language into their bylaws or governing documents allowing a fence to be built, but at the same time they recuse themselves from having to provide landscape maintenance for the gated portion."

It's also worth noting that even if an owner puts up a fence and takes on responsibility for the lawn, he or she will still pay a full maintenance fee. There are also times when a unit owner may want to handle some landscaping in the grass area outside their home, most likely to create a garden.

"Some people in multi-family buildings may want to tend a garden in an area that is really a common element," says Lipstein. "In that kind of situation, it might be best handled on a case-by-case basis." Even though the bylaws stipulate that the building is supposed to take care of that area, the association's management or board may approve of someone growing a small garden as long as it's reasonable. "I don't think anybody would go to such an extreme, that they would till up the lawns and plant a huge vegetable garden," Lipstein says.

Meant to Be Bent?

There may be times when a homeowner decides to handle something that is really the responsibility of the association, though these instances should be very rare. One example might be a common area or limited common area where snow or ice isn't properly removed. After calling the proper people, if the situation has not been taken care of, common sense says it would be relatively harmless for the unit owner to shovel or lay down some salt.

"I'm not going to say that a unit owner should never take cautions to prevent accidents—that would be silly," Lipstein says. "But in the best of all worlds, the people responsible should take care of it, and if the unit owner feels that's not happening, they should take appropriate steps and contact the association or the management company."

Even in the snow/ice example, it isn't impossible that the unit owner might use a substance that could damage the surface, or chip away with a shovel and cause damage.

Common sense would also tell a homeowner not to climb up on the roof to make a repair if the building isn't responding to his or her calls to fix the roof. But what steps can an owner take if he or she feels something isn't being taken care of properly?

"If the unit owners aren't happy with what's being done, there are a couple of different avenues," Lipstein says. "One practical avenue is to vote the trustees out at the next annual meeting. But since the law does put the responsibility of maintenance of the common areas on the association, if they're not doing it, residents can always go to court and seek equitable relief to compel the association to do what it's supposed to do."

Staying Informed

People buying a home in an HOA should take the step of learning what they'll be responsible for (as well as what they're not) when buying. Even people moving from one condo or free-standing home to another need to learn this, because things change from association to association. Most management companies and associations are glad to help prospective buyers, but it's impractical for them to seek new owners out and educate every one individually.

"Our associations try to make every effort to notify new homeowners [of what they're responsible for], but a lot of that is borne on the purchaser," Hastings says. "If you're interested in buying into an association, there are ways to find out the rules and regulations before you move in."

In addition to talking to the board and building management, a lot of information is available online, from real estate agents or from the seller.

"Under the current law in New Jersey, there isn't a lot of give and take," Ramsey says. "And I find frequently that people moving into a townhouse think they're moving into a condominium."

Ramsey says many of his properties have welcome packages that explain the association's basic rules and try to make the transition easier for new owners. He adds that there is currently legislation pending that would require associations to prepare a disclosure statement to new buyers that includes important information about the property. "That would give the adequate information to each incoming buyer as to what the association requires."

As with most things in a multi-family or association setting, getting things done and knowing who's responsible for doing them is everybody's job—not just the board or manager's. New homeowners need to read their documents, ask questions, and clarify anything that seems unclear, and board members and managing agents need to be available and willing to do their part to educate association members. Clear understanding of responsibility and obligations will not only help prevent conflict, but will help your association run more smoothly from day to day.

Anthony Stoeckert is a freelance writer and a frequent contributor to The New Jersey Cooperator.

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  • Is there a NJ State requirement of percentage of homes in an HOA that must be sold (occupied) before an amendment to the governing documents can be voted on. We understand thed vote must have 66% affirmative for the change, but is there a percentage of homes sold in a growing community
  • I live in a homeowner assn in NJ. The master deed is filed as condo. However, we are fee simple. We do not own the roof but we own the windows. Can a homeowner get on a ladder and wash his windows from the outside and climb on a ladder to do so? Can he do own repairs on common limited property?
  • I bought one unit of a 3-unit townhouse association that was haphazardly started by a real-estate flipper that turned an old home into 3 separate units. He filed condo docs so he could legally sell the units but had no intent on running an association. I have become in charge of this association by default and have alot of questions. The flipper is leaving the picture as the last unit is being sold and I have alot of basic questions. I've set up an acct and a tax id but I need help and an attorney (at $250 per hour) adds up quickly as there are only 3 owners. Please advise of any resources that could help me.
  • In a fee simple townhouse what is common practive for the extermination of vermon, rodents and insects, bees, etc$
  • Dear Mr. Stoeckert, in the last paragraph of Meant to be Bent?, you write that: "residents can always go to court and seek equitable relief to compel the association to do what it's supposed to do." Can you tell me in what court a NJ resident would take up this kind of matter? Can it be done in small claims court?
  • does the spring ridge governing body have the legal authority to collect from the owners of houses in the development for the continuing escalation of rules / regulations. basking ridge. Example - eveyr 2yr have an unused fireplace inspected cleaned or be fined n. j . basking ridge 07920
  • I live in a Townhouse in Bergen County. The wood on door to the sliding glass door is rotted and needs reeplacement. The door must adhere to the other doors in that each one is the same and painted the same. I feel this is the Associations responsiblity to replace. Am I correct?
  • can the board changes resolutions with out letting the homeowners have a say. thanks
  • please advise, maintenance company HOA has a contract with is not responding on our request for repairs,(roof leaks, gutters are falling off, deck is not constructed properly and water is not draining properly, build up of moss and algae, don't know what is developing behind siding, etc...), they just don't respond, I do pay all fees timely, please advise if court is only solution which court I should go to, thanks for your help, Osmo
  • I am in the process of buying a condo in NJ and the builder that runs the HOA is asking for 3 months of fees ($265 x 3). Is this normal and legal?????
  • I currently live in a fee simple HOA and just found out that our board wants to 1: no longer have a management company ( they will manage themselves i guess) 2: no longer have the common areas taken care of during the winter, meaning no snow removel or salt ( this is also the area used for all the kids to get the bus in the am) 3. Now are allowing the board members get a dinner paid for by the association for their meeting up to $150 per meeting. Is this all legal? I know not removing the snow on the sidewalks is illegal . I mean, we are 54 units and all they have to do is take care of 2 sidewalks and a 2 small grass fields.
  • I live in a HOA in 2010 I was approved to change my landscape due to the sun burning up my land then in 2014 the HOA stated they wanted more plants down or mulch. I put mulch down and it was approved. Now in late part of 2014 -2015 they want me to put more plants down and feels that the the approved 2010 application isn't good enough. I want to know if was approved in 2010 so why do I as a home owner have to put more down? And if I do and get approved can they know in two months time change their minds and say I need more? And thats ok? When does the bullying stop from there?
  • I am a retiree my annual income is $20,000. My maintenance fee is in the amount of $230 which I pay monthly. My Condominium Association requires to pay Special Assessment fees every year on the top of maintenance fee to cover expenses such as snow, heating and plumbing. Because, I am retiree I am having great difficulties in paying these Special Assessment. This year I am asked to pay additional $800 on the top of my monthly maintenance fees. Please advice me if I can refuse to pay Special Assessment fees. Thank you very much for your comments.
  • I was told a tree would be removed in the back yard if it was dead which it was That was over one year ago. Now they re telling me that there is a new board and all of a sudden this is our responsibility. I have an email from last year telling me they would remove it. I think I need an attorney.
  • I have the same problem, as I am a handicapped older senior on a fixed income last 20 yrs. and my original $150 mo. fees are now close to $500 mo. as our fees went up over 50% in recent month of 2015. I was paying $330. mo. last year which was too much for the little maintenance we get here. Glaring safety problems have existed for years, trees growing into ranch units and resting on roofing.... badly overgrown weed trees from woodlands nearby which has created no air movement. Because my annual gross income so low, there is no place to move (Central NJ Shore area/Monmouth Co.) in Twp of Middletown and now our prop. taxes and assessents are being reassessed for a 5 yr. period and being based on best maintained unit in village. Mine has had no replacements or painting or carpeting done in over 20-35 yrs. and I can barely get up the steep 7" riser exeterior stairs. My tiny 2nd floor unit is worth around $95K.
  • I live in a condo in NC. Myself and several other owners were specifically told that all we owned or would be responsible for was the interior of the unit. Now the association says we own our decks and must maintain them. I have lived there 17 years? Even if we do own the decks shouldn't the association have to maintain the decks if this has been this way for 17 years?
  • I live in an association in Princeton, NJ. I have to have my front door lock replaced and they are telling me once it's replaced I will get a bill for it. How can this be fair? I don't own the door, and can't take the lock with me when I leave...the association here is, doors, etc. they claim to be our responsibility, what am I paying 312.00 a month for?
  • I live in a condo development in Galloway NJ. We are 18 two story buildings 8 units per building for a total of 144 units. In each building there are 3 units that have decks for a total of 54 decks. About 80% of the units have wood burning fireplaces with cinderblock and stucco chimneys. The by law states each individual is responsible for the ordinary and regular maintenance of both the chimney and deck, In regards to chimneys I would think it would mean keeping the flue clean and having it inspected. In regards to the decks keeping it clean and free of clutter. In a seven year time period the association has replaced 25 decks and rebuilt 2 chimneys. Now they are saying it is the individual owners responsibility to rebuild these. How can they do this? Thanks George
  • We have 3 Jacuzzis and a waterfall in need of a repair as well as needing to be waterproofed below. The cost is around 3 million dollars. The board wants to redesign it (a major change). They are asking us to vote on whether to put it back the way it currently is or use a new design they spent association money on to get. They say whichever gets the most votes. Don't we need a certain percent of HOMEOWNERS to do the new design and not just 51% of those that vote? And they also say if they think not enough people vote, they will throw the vote out and do the new design. Can they do that? I don't believe so but need to find out for sure. Thanks, Jen
  • I pay HOA fees for landscaping. Not all areas of the development are the same....some streets just have ornamental trees & minimal amount of leaves falling. My block is swamped with leaves on the ground that begin in September but I cannot get management to send the landscapers to keep walkways clear. How do I get copies of the contract between the HOA & the landscapers. How can I document or build a case on my own - no lawyers. Are there any laws that I can refer to if I want to see bids, details of the work provided, or a schedule of days landscapers should be working & also the WORK THAT THEY DID/SHOULD DO? I would like to find a way to persuade management to provide more attention to certain areas when necessary.