Foundation in Multi-Family Units (PUD)

Started by JenniferM10 • 8 replies • 3434 views

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JenniferM10 (Illinois)
Posts: 97

Posted:

Our board recently announced that they are replacing and repairing patios on some of our 30 year old townhomes. Through a recent review by a lawyer it was determined that the footers under the buildings and patios will be the responsibility of the home owner.

The BOD is claiming this because 1) We're apparently, legally a PUD not condominiums (I'm still trying to figure out what exactly this means) and 2) Anything not specifically stated in the documents to be the responsibility of the HOA is the responsibility of the homeowner.

Here's what, I think, is the pertinent part of our by-laws. I've attached the full document, too, so you can see it in context.

Section 2

(c) Providing exterior maintenance of the living units as following: (1) paint, caulk, repair and replace roofs, roof vents, chimneys, gutters, downspouts, light fixtures, wood balconies, and railings, stoops, patios and exterior wall surfaces, (ii) paint and make surface repairs on exterior surfaces of doors, and window frames, (iii) repair and replace streets, driveways and walkways, (iv) perform other exterior maintenance as from time to time is determined by the Board of Directors of the Association to be reasonably necessary to maintain the Living Units consistent with funds available to the Association, such additional maintenance to be exercised uniformly for the benefit of all Living Units in the "Section" in which it is being performed.

Unless otherwise determined by the Board of Directors under subparagraph (iv) above, exterior maintenance shall not include: (i) structural and/or waterproofing, repair, replacement or care of basement walls and floor, (ii) repair, replacement or care of mechanical equipment and/or its pads and foundations, light bulbs, electric outlets, water sillcocks, window and door glass or screen, (iii) repair, replacement or care of operating parts of doors and windows, (iv) cleaning or replacement of doors and windows, (v) general cleaning, or debris removal, (vi) any care whatsoever to improvements or additions made other than by the original Developer in constructing the Living unit.

Has anyone else come across something like this?

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TimB4 (Tennessee)
Posts: 21,059

Posted:

Hi Jennifer,

A PUD, or planned unit development, is when individual unit owners own or have a leasehold interest in a parcel of land improved with a dwelling. Typically with Condominiums, the individual owns the unit but not the land.

I suspect that if the development was a condominium, the Association would be fully responsible for the common areas, which would include the land and foundations.

The following section that you posted is what I expect the Association is basing it's decision on [emphasis added]:

"Unless otherwise determined by the Board of Directors under subparagraph (iv) above, exterior maintenance shall not include: (i) structural and/or waterproofing, . . . "

Tim

JohnB26 (South Carolina)
Posts: 1,569

Posted:

DITTO

you are SOL (crude statement, but accurate)

PetunkaM (Florida)
Posts: 1,009

Posted:

Jennifer,

As far as I know, PUD is a zoning term where a various zoning restrictions are approved for the entire development. Such a development can include a mix of single family units (townhouse, standalone house) or multi-family units (condominiums). It can also include office buildings, shopping rec areas, etc.

I briefly scanned thru your 1979(?) covenants but cannot determine if your community includes only single family units or multi-family units? You seem to imply your building is a multi-family unit? How many units in the building?

I also think your attorney could be wrong because your covenants require the Association to maintain patios:
‘Providing exterior maintenance of the living units as following: (1) paint, caulk, repair and replace roofs, roof vents, chimneys, gutters, downspouts, light fixtures, wood balconies, and railings, stoops, PATIOS and exterior wall surfaces,..

Nevertheless, the board has the authority to decide if they want to maintain certain portion of the building (listed below). In other words, they can maintain certain areas but do not have to. In my view, that would be rather strange for a multi-family unit or a condominium townhouse but it could be justifiable for a single family unit owned fee-simple. ( I also think that this provision should be amended ASAP):

‘Unless otherwise determined by the Board of Directors under subparagraph (iv) above, exterior maintenance shall not include:

(i) structural and/or waterproofing, repair, replacement or care of basement walls and floor, (ii) repair, replacement or care of mechanical equipment and/or its pads and foundations, light bulbs, electric outlets, water sillcocks, window and door glass or screen, (iii) repair, replacement or care of operating parts of doors and windows, (iv) cleaning or replacement of doors and windows, (v) general cleaning, or debris removal, (vi) any care whatsoever to improvements or additions made other than by the original Developer in constructing the Living unit.’

The Insurance provision is also shaky.. ‘The "deductible" portion of any insured claim payable by any other than the insurance comp shall be paid by the Owner(s) of the Living Unit damaged or destroyed…. this provision for blanket insurance may be amended or rescinded;’

Question: 1. what exactly you own? Have you had a chance to review the association insurance policies?

JenniferM10 (Illinois)
Posts: 97

Posted:

Thanks for the posts. I think you see why I'm confused. The community consists of nearly 600 townhomes, all in multi-family buildings with 6 units each. Each unit has it's own entrance, a patio door at ground level as a back entrance, and a garage (mostly one car, but some two car).

The confusing part is figuring out who's responsible for what when none of it seems to be the norm. How can we own the land our units are on, but the HOA be responsible for the patios, sidewalks, driveways, and external building maintenance and landscaping? We own the underlying structure, but not the outside walls, patio, decks, or paving?

My next step is to get a copy of the HOA policy and pass it on to my insurer to be sure there are no gaps in coverage. Insurance won't help, though, if the HOA starts to replace my patio and finds issues with the footers. Their contractors would be doing the work, but I would be paying the bill. I know that's not a terribly likely scenario, but it still is something I should have some kind of financial plan for.

I agree the documents are very dated. The by-laws and covenants we currently have are the ones the builder put in place, though the rules and regulations document has been kept somewhat more current (last revision in 2009)

Thanks again and have a good weekend!

PetunkaM (Florida)
Posts: 1,009

Posted:

'How can we own the land our units are on, but the HOA be responsible for the patios, sidewalks, driveways, and external building maintenance and landscaping? We own the underlying structure, but not the outside walls, patio, decks, or paving?'

Jennifer,

I believe that you do not seem to know what you own and ALSO you are confusing the association maintenance responsibilities with ownership.

'My next step is to get a copy of the HOA policy and pass it on to my insurer to be sure there are no gaps in coverage. '

Well, the insurance agents will not know or care unless you tell them exactly what you own. Be careful there.

PetunkaM (Florida)
Posts: 1,009

Posted:

Association" shall mean and refer to the Wynds at Oakbrook Homeowners Association, Inc., and its successors and assigns..
fee simple title..
Lot" shall mean and refer to any plot of land shown upon any recorded subdivision plat or map of the property or recorded resubdivision thereof with the exception of the common areas or community facilities\
--
Jennifer,

just to clarify.
According to your covenants, I am of the opinion that your are HOA and own the townhouses, including the ground and the exterior walls and the roof above (your portion). You need to find the plat to see where the boundary of the ‘lot’ you own is. I would also assume that your deed refers to the LOT of that ‘plat’.

You are obligated to pay assessments and the association is responsible for maintaining the exterior of all units as described in the covenants.
Insurance: You MUST tell your insurance agent you own the units ‘fee-simple’. Otherwise they will insure you as a condominium. As to the HOA insurance also make sure that you are not insured as a condominium.

I would first, contact a real estate attorney and show him your covenants,the plat and a copy of your deed. Then I would talk to insurance company. This should clarify the ownership, the association responsibilities and assure you are insured correctly. I think.

JenniferM10 (Illinois)
Posts: 97

Posted:

Thanks Petunka, for all the comments. You've given me a lot to think about, and it's a perspective I hadn't considered. The bottom line is probably that I don't actually own what I thought I owned. lol It sounds stupid when I see it in black and white like that, but I thought I was buying a condo, and apparently I bought something more along the lines of a duplex. It does make our $185 a month fees feel higher, since it looks I'm responsible for more of the building than I thought I was.

My insurance agent is unique - she joined her family business while attending college and law school. She passed the bar last year, and now spends part of her time working for the insurance company while she's building her law practice. It's coming in very handy!

PetunkaM (Florida)
Posts: 1,009

Posted:

Jennifer,

The problem you have described is quite common. The most confusing are older, non-condominium townhouse developments which are still running on old docs. From late 1970s to late 1980s the HOA concept was poorly understood and the covenants are kind of a hybrid between HOAs and condominiums. One example is insurance.

Many covenants require the association to insure the buildings, but the association really does not have an 'insurable interest' in the property it does not own. This turned out to be a fiasco in Florida where many insurance agents insured the townhouse buildings for flood. So, these HOAs paid thousands of dollars every month (and many probably still do) just to find out they were not insured. According to FEMA each townhouse unit owner must carry his own flood insurance (Federal law). But Florida allows HOAs to insure townhouse buildings for wind and fire IF the association is responsible for exterior maintenance. In this instance the owner has to insure only personal belongings and improvements. So, figure.

I still struggle with the paragraph (below). It really should NOT be up to the board to decide this. You guys ought to lobby to rewrite this provision and define exactly what ‘exterior’ is. If you do not, the BOD may fix some buildings and not others. It has been known to happen.

'Unless otherwise determined by the Board of Directors under subparagraph (iv) above, exterior maintenance shall not include: (i) structural and/or waterproofing, repair, replacement or care of basement walls and floor, (ii) repair, replacement or care of mechanical equipment and/or its pads and foundations, light bulbs, electric outlets, water sillcocks, window and door glass or screen, (iii) repair, replacement or care of operating parts of doors and windows, (iv) cleaning or replacement of doors and windows, (v) general cleaning, or debris removal, (vi) any care whatsoever to improvements or additions made other than by the original Developer in constructing the Living unit.'

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