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Can an HOA dictate a particular window manufacturer when replacing windows?

Started by BrockW • 24 replies • 3572 views

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BrockW (Illinois)
Posts: 6
Posted:
Greetings - first posting, and a search for my question within the forum did not yield any results.

The Subject line sums up my question. In doing so, does this create exposure to the HOA and it's board in terms of liability?

Thanks for your replies.
FredS7 (Arizona)
Posts: 927
Posted:
One post history, strange question.

If this is a serious question- liability for WHAT? I can't even imagine what you are thinking.
BrockW (Illinois)
Posts: 6
Posted:
Fred - Please allow me to explain.

If an HOA dictates that you are to replace a window, or windows, with a particular manufacturer (Lets's use Brand X as an example)and there is a manufacturing quality issue ,or issues, with the window(s), a homeowner will inherently take recourse against the installing contractor and the manufacturer of the window.

Since the HOA dictated to the homeowners, within an association, that they are to buy and install Brand X only, could the HOA be held accountable and liable for the issues of the window(s) - afterall the HOA said that Brand X only to be used. Whereas, giving the homeowner the flexibility of purchasing any window manufacturers product that they wished would take the HOA out of the equation.

Hopefully this provides some clarity around the question.

Thanks.
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Quote:
Can an HOA dictate a particular window manufacturer when replacing windows?


Yes, but if you can prove that another window company is "IDENTICAL" I'm sure your board would discuss it with you. The issue sounds like the board wants to keep all the windows looking the same, so all the buildings look identical. Which is reasonable if that is the look of your building. It would look even worse to have a building with all different windows.
CarolR11 (Colorado)
Posts: 2,563
Posted:
Is your HOA single family homes? Or condos? Or?

In our high rise, all windows must be identical in brand and color as the original and all replacements, additions, etc., must go through the ARC (Architectural Review Comm.) process.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By BrockW on 06/14/2014 11:21 AM

Fred - Please allow me to explain.

Brock,

That's a legal question that would have to be decided by the courts.

I'm sure that you could find an attorney who would say that there is liability. I'm sure that the Association can find an attorney who would say that there isn't any liability.

BrockW (Illinois)
Posts: 6
Posted:
Quote:
Posted By CarolR11 on 06/14/2014 11:48 AM
Is your HOA single family homes? Or condos? Or?

In our high rise, all windows must be identical in brand and color as the original and all replacements, additions, etc., must go through the ARC (Architectural Review Comm.) process.

Carol - I reside in a townhouse - over 200 units. The exterior color is not relevant in this case (all current windows are aluminum clad - white in color), and that cannot be changed, and rightfully so.
BrockW (Illinois)
Posts: 6
Posted:


Brock,

That's a legal question that would have to be decided by the courts.

I'm sure that you could find an attorney who would say that there is liability. I'm sure that the Association can find an attorney who would say that there isn't any liability.


Tim - as a board member myself, I would hope that there would be legal consensus, or a definitive, long before a board rules yes or no to such a plan, and mitigating any legal recourse that COULD occur. Just trying to protect a board and the unit owners.
FredS7 (Arizona)
Posts: 927
Posted:
> If an HOA dictates that you are to replace a window, or windows, with a particular manufacturer (Lets's use Brand X as an example)and there is a manufacturing quality issue ,or issues, with the window(s), a homeowner will inherently take recourse against the installing contractor and the manufacturer of the window.

In the US you can sue a ham sandwich for not having enough mayonnaise. Unless the supplier has a known serious safety issue (say, they made the windows using asbestos) or a well known, serious quality problem, this seems to me one of the more remote possibilities for a successful lawsuit against the association.

CarolR11 (Colorado)
Posts: 2,563
Posted:
With Fred, I think the likelihood such a lawsuit scenario is extremely remote. A whole lot of "what ifs" have to occur first. As a director, perhaps you'd like to ask the Board for permission to ask your HOA attorney. Or you HOA insurance agent. Or both.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By BrockW on 06/14/2014 1:53 PM

Just trying to protect a board and the unit owners.

Then my suggestion would be to amend the rule.

The goal, I expect, is to have all the windows look the same.
Therefore, identify the specifics you need to have them look the same (color, size, number of panes (or appearance of number of panes), type of grids, etc.). Mention that prior approval is needed and that the Association will only approve windows that meet all of these requirements. Add that the Association has identified that manufacturer model #, currently meets these requirements.

Now the Association isn't limiting what manufacturer or model will be approved. They are only specifying that they are aware that this manufacturer's model meets these requirements. Member can do the leg work to identify other manufactures.

Of course, if the Board was willing, they could also go out and speak with various window companies and identify 2 or 3 manufactures models that will meet the specifics.
AnnH5 (Florida)
Posts: 304
Posted:
I am not an attorney but I do believe that if the HOA dictates not just what color or size or shape window but ALSO a specific manufacturer then yes, the HOA will assume some level of liability. HOAs should never "endorse" any manufacturer as a matter of covenant restrictions.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
From Tim:

The goal, I expect, is to have all the windows look the same.
Therefore, identify the specifics you need to have them look the same (color, size, number of panes (or appearance of number of panes), type of grids, etc.). Mention that prior approval is needed and that the Association will only approve windows that meet all of these requirements. Add that the Association has identified that manufacturer model #, currently meets these requirements.

Now the Association isn't limiting what manufacturer or model will be approved. They are only specifying that they are aware that this manufacturer's model meets these requirements. Member can do the leg work to identify other manufactures.

Sound advice.

EllieD (Vermont)
Posts: 446
Posted:
Brock,

Would you be willing to post some additional information?

You said townhouse - over 200 units, so I assume Condominium Association. How are your Townhouse Units parametric boundaries defined? My reason for asking is, are you positive who’s responsibility it is to replace windows, the Unit Owners or the Association?

Have any windows, in any of the 200 units or so, been replaced yet?

Why are windows being replaced? Because they are broken? Because they are “old”, maybe original windows installed 20-30 years ago? Or just because owners want to update to more energy efficient windows?

Who is approved to install the window? Will the specification also state the Contractor, Carpenter, who is to install?

In my Condo Association, do not allow any contractor to work on the outside of our buildings unless the Contractor has proper Insurance, and the Association is named as an additional insured.

Are you self managed, or do you have a Management Company?

How was the particular window to be installed, chosen? Who did the research? Who did the recommending?
BrockW (Illinois)
Posts: 6
Posted:
Quote:
Posted By EllieD on 06/14/2014 6:27 PM
Brock,

Would you be willing to post some additional information?

You said townhouse - over 200 units, so I assume Condominium Association. How are your Townhouse Units parametric boundaries defined? My reason for asking is, are you positive who’s responsibility it is to replace windows, the Unit Owners or the Association?

Homeowners responsibility

Have any windows, in any of the 200 units or so, been replaced yet?

Yes - some full tear outs - three with vinyl inserts

Why are windows being replaced? Because they are broken? Because they are “old”, maybe original windows installed 20-30 years ago? Or just because owners want to update to more energy efficient windows?

Aging aluminum clad windows

Who is approved to install the window? Will the specification also state the Contractor, Carpenter, who is to install?

No "endorsed" contractor - onus is on the homeowner

In my Condo Association, do not allow any contractor to work on the outside of our buildings unless the Contractor has proper Insurance, and the Association is named as an additional insured.

Are you self managed, or do you have a Management Company?

Management company

How was the particular window to be installed, chosen? Who did the research? Who did the recommending?

The placement of vinyl inserts was what sparked the reinstatement of the ACC. Somewhat arbitrary of the 5 or 6 member make up of the ACC did the research. ACC did the recommending on the windows

PitA1
Posts: 222
Posted:
YES, they may

however, if an 'equivalent equal' were to be found ??????

after 40+ years in construction I have NEVER located a satisfactory 'equivalent equal' in terms of visual aspects

(there are 10,000 shades of white)
PitA1
Posts: 222
Posted:
believe it or not the 'typical' human eye can 'discern' about 2000 shades of 'white'
CarolR11 (Colorado)
Posts: 2,563
Posted:
Agreeing with PitA, because we can discern so many shades of any color is exactly why we may only use one brand and one color. Same goes for window tinting, by the way.
BrockW (Illinois)
Posts: 6
Posted:
It appears that the original question was somewhat routed to color, and discernible shades of white. The original question had nothing to do with color, but MANUFACTURER of a window.

Let me be very explicit - there is a well known national window company that has had a class action suit against them for inferior product. This particular manufacturer is one of the windows that the ACC has requested to be approved.

Now, simply put, if a homeowner purchases and has the required window installed by an approved manufacturers installer and years down the road, there is a design flaw with the window itself that leads to issues, who is held responsible?? Obviously the manufacturer, but is the association responsible? They are the one's that required the window. It would be one thing if the association was paying for window replacement - the window gets replaced, but if it is on the homeowner's buck the homeowner is now stuck with footing the bill for replacement, not to mention the time and money for any dealings with the manufacturer to resolve the issue.

Is the requirement of a window by an association worth the risk in terms of liability? Or is it better to let the homeowner choose a window of their choosing ,that is somewhat similar, and be free and clear of any possible liability?

Thanks.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By BrockW on 06/15/2014 1:38 PM

Now, simply put, if a homeowner purchases and has the required window installed by an approved manufacturers installer and years down the road, there is a design flaw with the window itself that leads to issues, who is held responsible??

In my opinion, since (per your postings) the homeowner has the responsibility to maintain and repair said window, it is the homeowners responsibility to deal with the potential issues caused by a manufacturer defect.

The Homeowner is certainly free, through the courts or arbitration, to seek monetary reimbursement for damages caused by the defect from any party they believe may be a party to this defect. For example:

The manufacture may be named because they were negligent in not providing quality control

Perhaps the Association may be named because they wouldn't approve any other window (but you would need to prove that).

Perhaps the previous owner of the property could be named because they chose to install that window vs. try to see if a different manufacturer would be allowed.

It would be an interesting case. I wish you luck if you bring such a case. Perhaps the Association will settle out of court because it's cheaper than defending itself (but that won't answer the question). Perhaps they will simply deny, deflect and delay hoping you run out of money perusing the issue (and that won't answer the question either). Of course, if you never attempted to request a different manufacture, perhaps you were partially negligent for failing to do due diligence in researching different options (that very well could be the response of the Association to such legal action). As I said, it would be an interesting case.
CarolR11 (Colorado)
Posts: 2,563
Posted:
Brock, you wrote: "...there is a well known national window company that has had a class action suit against them for inferior product. This particular manufacturer is one of the windows that the ACC has requested to be approved."

Does this mean that there are other manufacturers whose windows are being considered? Why would the ACC want a manuf. with a class action suit against it ? Do its windows come with a warranty? For how long? As a director, can you persuade the rest of the Board to choose a different manufacturer?

Our original windows came with a 10 -year warranty and we recovered a great deal of funds from it as a part of our construction defect settlement. The seal on many was permitting the window glass to get an edge of milky white.

TimB4 (Tennessee)
Posts: 21,062
Posted:
Carol,

I think that the actual question that would be needed to be answered in court would be was it reasonable that the Association, when specifying this one manufacturer, should have forseen a manufacturing defect.

In my opinion, that would be an unreasonable expectation.

The Association wouldn't have been able to foresee issues any more than any of the individuals who purchased the windows would have.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Brock

Is it an issue with you who the specified manufacturer is or is it the fact you do not like the association mandating?

Thanks
CarolR11 (Colorado)
Posts: 2,563
Posted:
I think I do get it, Tim. But it doesn't seem to me that there is a final decision about which manf. to use. I may misunderstand though. I'm not even thinking about court or a lawsuit.
FredS7 (Arizona)
Posts: 927
Posted:
>Let me be very explicit - there is a well known national window company that has had a class action suit against them for inferior product. This particular manufacturer is one of the windows that the ACC has requested to be approved.

This changes the probability of a significant liability from very remote to remote. A manufacturer with a class action suit is very likely to fix the manufacturing defect.

I do agree that it might be a better choice to go elsewhere. However the choice to use that manufacturer in the interests of uniformity (I suppose to match existing windows) seems to me a defensible choice.

(It always helps to be explicit about WHY you have a concern).

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