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QUESTION/ANSWER BY JOHN H. GETTINGER, ESQ.

Question:

HOA previously marked owner responsibility as contained within the unit walls and has recently started a process that would transfer responsibility for unit patio maintenance back to the unit owners. Does this raise issues of insurance and past practices?

Answer:

This does not raise an issue of past practices if the transfer of responsibility is properly made. I assume that the homeowners association constituent documents currently provide that the patios are a part of the common areas, and that the homeowners association is responsible for the maintenance and repair of the common areas. In order to "transfer responsibility for unit patio maintenance back to the unit owners," the homeowners association would have to cause for the constituent documents to be amended (i) to define a patio to which a unit owner has the exclusive right of use as a "limited common area," and (ii) to provide that the unit owner, who has the exclusive right to use and enjoy the limited common area, be responsible for the repair and maintenance of the limited common area. Typically, such an amendment to the homeowners association's constituent documents requires vote of 66 2/3rds of the unit owners at a meeting properly called for such purpose. If the amendment is duly adopted by the unit owners, past practices becomes irrelevant as the change has been made through an amendment to the constituent documents. It must be noted that the Board, acting alone, does not have the authority (through rule adoption or otherwise) to transfer the responsibility for "unit patio maintenance back to the unit owners." The only "process" which is legally sufficient to accomplish this is by amendment of the constituent documents.

This also does not raise an insurance issue. Typically, a liability insurance policy offered by an insurer to a unit owner in a homeowners association will cover claims for personal injuries or property damage sustained by reason of the unit owner's negligence not only within the unit, but also upon any limited common area appurtenant to such unit which, pursuant to the constituent documents, the unit owner has the obligation to repair and maintain.

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