COMMON AREA NOW MY RESPONSIBILITY TO MAINTAIN!?

Received this from our Board the other day. "Based on our Declarations of Restrictions, Covenants, Easements, and Conditions dated 1/6/99, Article VI-Section 6.2-page 9, it was discovered that every homeowner has exclusive rights to use their driveway, sidewalks, exterior post lamp, pad mounted air condition units, privacy fence and front step and patio. Based on this exclusive use, it is the homeowner's responsibility to maintain, repair and replace these areas as needed. This includes repairing or replacing any concrete that poses a fall/risk hazard or have defective concrete....Again at the homeowner's expense."

Here's the kicker....."In addition, end units that use a shared access roadway, between their two homes, to access their driveway are also responsible for the maintenance, repair, and replacement of concrete on that shared roadway. Because the shared roadway is for the exclusive use of the two homeowners, it is not HOA responsibility.
Please Note: Exclusive use of these areas does NOT mean resident's OWN that land. It is still considered common ground.....".

The section of the covenants they are referring to is two sentences long - DRIVEWAY/LOT EASEMENTS There shall be easements, with respect to each residential Unit, for the placement of a driveway, sidewalks, an exterior post lamp, pad mounted air conditioning units, and privacy fences (the "Driveway/Lot Easements"). Each residential Unit's driveway shall be for the exclusive use of the Owner of such Unit."

How can the shared roadway (extension of the street to get to my driveway in front of my garage) be my responsibility now? There is no mention of shared roadway in the above CCR section they are referring to that I can see. I see the word "exclusive" only pertaining to the driveway.

So after 17 years, the residents now have to fix the part of the street (common area) that is in front of their home that leads to their garage. This new "discovery" cannot be correct, can it? Two neighbors received notices (along with the new discovery letter) to fix concrete cracks on their "shared roadway" and were given 30 days to do it or pay attorney fees, etc.!?!?

I live in a planned community in Ohio - 28 townhomes (four connected in a section - two in the middle, two on the ends).

Thank you very much for your input! Sure they want to save money. The concrete is getting older and needs attention.

The only time exclusive is mentioned in the CC&R is in the part I mentioned regarding each residential Unit's driveway. There is no general, limited or exclusive anything in our CC&R definition of "Common Areas". It says Common Areas shall mean and refer to all areas of land designated on any recorded subdivision plat, OTHER THAN THE LOTS, which are intended to be devoted to the common use and enjoyment of all the Owners. "Lot" definition is any sub lot shown upon any recorded subdivision plat. In real estate law, common area is the area which is available for use by more than ONE person......

At the annual meeting in March, it was disclosed that the HOA attorney is the one who has made this determination (we just now have received "official" notification by mail).

Yes the Board will step in if one homeowner balks. They say if not fixed, the HOA will do it and the homeowner will have to pay such special assessment or be deemed in default, bear interest, possible notice of lien and all legal fees.

I have talked to a private attorney. He thinks they are wrong but we would have to sue them and have a judge interpret and determine the CC&R language $$$$$$$.

The majority of the residents here are extremely apathetic. I guess to prove the Board wrong, I'd have to knock on doors and try to wake these people up and get them involved.

Unfortunately, the State of Ohio's revised code doesn't help much and Ohio doesn't enforce anything.

Hope to get more feedback and comments to help guide me through my protest and objection!

Where the documents aren't clear, I try to follow the lead of local municipalities and counties. I don't know about the rest of the country, but, as an example, driveway aprons that are on public right of way are just about universally the responsibility of the property owner that benefits from them. This suggests that improvements benefit one or two owners can be their responsibility even if not on their land.

From what I have read, in California and some other western areas it is common for owners to be responsible for sidewalks adjacent to their property, even if on public right of way. There certainly is no argument that those are exclusive use.

So there is public precedent for the board's action. Since getting a definitive answer from a judge would be so expensive, it probably doesn't make sense to do it proactively, but wait until expensive repairs are needed, and band together with other owners to bring the suit.

One other thing to keep in mind is the owners pay for the work one way or the other, either directly or through dues and possibly special assessments, so this really might not cost you more over the long run. It somewhat depends on whether you think the association could do the work cheaper than you could.

Keep in mind that what ever policy/decision the Board makes, it also applies to them as well. They may feel that since the attorney told them what needed to be done, that it must be correct. However, in my experience not all attorneys are well versed in common interest community law and occasionally they are wrong in the interpretation of the Declaration language.

Having said that, below are the sections from my Declaration that apply to your situation. A close reading will indicate that the only Limited Common Element that the owner must maintain, is their exterior HVAC unit.

Perhaps they will point you towards similar verbiage in your documents:

ARTICLE V
Limited Common Elements.

The following portions of the Common Elements are Limited Common Elements assigned to the Units as stated:
(a) If any chute, chimney, flue, pipe, duct, wire, conduit, or any other fixture lies outside the designated boundaries of a Unit, any portion thereof serving only that Unit is a Limited Common Element, the use of which is limited to that Unit, and any portion thereof serving more than one (1) Unit or any portion of the Common Elements is a part of the Common Elements.
(b) Any shutters, awnings, window boxes, doorsteps, stoops, porches, patios and all exterior doors and windows or other fixtures designed to serve a single Unit, but located outside the Unit's boundaries, are Limited Common Elements allocated exclusively to that Unit and their use is limited to that Unit,
(c) Stoops, and steps at the entrances to the front and rear of each building, which provide access to less than all Units, the use of which is limited to the Units to which they provide access.
(d) The Driveway located in front of the garage portion of each Unit is a limited common element servicing that Unit.
(e) Any space heating, water heating and air conditioning apparatus and all electrical switches, television, telephone, and electrical receptacles and light switches serving one Unit exclusively, are Limited Common Elements allocated exclusively to that Unit and their use is limited to that Unit.

As to each of the foregoing, a right of use is reserved as an appurtenance to the particular Unit or Units as described above. The fee ownership of the Limited Common Elements, however, is vested in all of the Unit Owners.

ARTICLE VI
Maintenance, Repair and Replacement

Section 6.1 - Common Elements. The Association shall maintain, repair and replace all of the Common Elements, except the portions of the Limited Common Elements which are required by this Declaration to be maintained, repaired or replaced by the Unit Owners.
Section 6.2 - Units. Each Unit Owner shall maintain, repair and replace at his or her own expense, all portions of his or her Unit, except the portions thereof to be maintained, repaired or replaced by the Association.
Section 6.3 - Limited Common Elements. Notwithstanding the provisions of Section 6.1 and Section 6.2, each Unit Owner shall be responsible for removing all snow, leaves and debris from the patio which is a Limited Common Element appurtenant to his or her Unit.

Furthermore, each Unit Owner shall be responsible for the maintenance, repair and replacement of those Limited Common Elements described in Article V Subsection (e) of this Declaration. Furthermore, if a Unit Owner fails to keep a Limited Common Element for which he is responsible in a sightly and safe condition and in good repair, the Association may perform the necessary maintenance and repair and charge the cost thereof to such Unit Owner as if it were a common expense.

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