Front stoops/porches

As your attorney indicated, unit owners can't "vote to transfer responsibility" in contradiction of your governing documents. Instead, you must amend them. You will need 75% of owners to vote Yes to pass the amendment; 25% No means the amendment has failed, and anything in between means "undecided". If the amendment passes, it must be recorded with your county - and the amendment is not in effect until it is recorded.

It sounds like you have a good handle on this, and the membership doesn't. You may need to go through the formal amendment process, take the vote, and let the chips fall where they may. However...

We amended our Declaration, and the entire process took about a year. It also took about $1000 in legal expenses. Owners need to understand that they will spend this money whether or not the amendment fails.

For this reason, I'd recommend poling the entire community first (assuming that your annual meeting was not attended by a majority of owners, meaning the results of the vote may not represent majority opinion). If the result of this poll isn't very close to 75% Yes, you may want to rethink spending the money at all.

Owners who want to object can hire their own lawyers and have them explain the facts to them. But the results of the official poll may be enough to convince them.

Owners also need to understand that transferring maintenance of porches and stoops will result in an increase in assessments (your reserve requirements will rise immediately, and you'll probably need to pay for a new reserve study as well to accommodate this change).

I'm always amazed that so many people don't understand that "the HOA pays" means that "homeowners pay". The only advantages to having the HOA do it are that the HOA can get better pricing through bulk bids and that things will be maintained consistently.

Concrete can be warrantied? I suppose, but this HOA's infrastructure seems pretty old for a concrete warranty to still be valid.

Or you think Owners might claim the Board's epoxy decisions (and regrettably, multiple years tending to establish a course of conduct yada) may have damaged the underlying concrete?

I agree with CathyA3's points regarding explaining to the Owners that they are going to pay either way and surveying before trying to amend (if there is interest in re-attempting amendment).

Yes, concrete can be warrantied, but the OP's community is probably beyond that period.

The other issue is that application of certain products make it impossible to use different products that also claim to extend the usable life of the concrete. So when repairs are needed, you may be stuck with replacing the concrete altogether, which is usually the costliest solution.

I don't know that the owners have an issue that is worth fighting legally. I do know that without the expoxy coatings, the current board could simply say "this is user responsibility per the Declaration and the previous vote was not valid" - and owners would be less likely to fight it. We know how legal wrangling can end up costing a lot more than whatever the underlying issue is worth. :-)

Related to this: the difference between Common Elements and Limited Common Elements may depend on the structure of the concrete surface.

Example: in my community, driveways function as Limited Common Elements via restrictions (ie, exclusive use for the owner of the unit) but they are defined as Common Elements so that the association can maintain them. This is because many of the driveways are part of a single sheet of concrete, and a unit owner can't repair or replace his driveway without affecting the driveways on either side.

So if some of the porches or stoops in the OP's community are also parts of a single sheet of concrete separated by a privacy wall, for example, the HOA would have to be responsible.

Looking at things this way can be helpful if the governing docs don't spell it out.

Quote:

"Unit owners Responsibility. The owner of each Unit shall (a) maintain in good condition and repair and replace all of the components or installations within or used by the unit, including but not limited to all utility lines and installations, the heating and air conditioning systems for the Unit, fixtures appliances, water heater, equipment, interior walls, partitions, flooring ceilings, windows, window frames and doors, including all glass and locks in window and doors, (b) paint and decorate the interior or the perimeter walls and all walls and surface areas withing the Unit; (c) keep the patio deck or porch appurtenant to the Unit in a clean and neat condition; (d) keep and maintain in good and orderly condition its Limited Common Elements and repair and replace any portion of the Common Elements damaged through the fault or negligence of such owner or such owner’s family, guests or invitees or any other occupants of the Unit. Notwithstanding the above repairs to the Common Elements shall be affected by the Association but paid for by the Unit owner if within this section."

I agree with you that the owners are clearly responsible for maintaining their front porches or stoops. The language stating "repairs to the Common Elements shall by affected by the Association" refers to the previous sentence which talks about damage to the Common Elements by the owner or other occupants of the unit, not routine maintenance of the porches/Limited Common Elements. There's also a typo there - should be "effected" or "caused to happen", not "affected". {Thank you, Dr. Grammar.}

Any vote to change this would have no effect (ha!) unless the entire membership was able to vote on an amendment that changes this, 75% or more of the membership voted in favor, and the amendment was recorded in your county.

(One caveat: You're using the word "bylaws" for language that usually appears in the Covenants, Conditions & Restrictions, and the CC&Rs must be recorded to be effective. Bylaws usually cover how an association is run - the number of directors and officers, how elections are run, etc. - and may or may not have to be recorded. But there are exceptions to these general rules. Just saying for the record.)

As others have noted, the fact that past boards have maintained these porches, in violation of the governing docs, muddies the waters. It may or may not be enough to change anything ("course of conduct", or in other words, do something wrong long enough and it becomes accepted). But that's a legal question - I have no idea what a court may say about this situation.

We have not replaced any concrete. Only taken off the epoxy on some and replaced with a non slip coating. So the concrete itself is not an issue. The work was done by a volunteer owner. He choose which ones he would do. Sometimes based on if he like the owner or not. The associaiton did not pay for this.