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Party wall provision in CCRs? (NC)

Started by MichaelH34 • 17 replies • 534 views

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MichaelH34 (North Carolina)
Posts: 179
Posted:
We've got a new resident coming in and they have a real estate attorney for a relative, this will either be good or a new nightmare, only time will tell. :-)

After looking at our CCRs they mentioned that it needs a party wall provision.

We do have buildings with shared firewalls in between the "units" but nothing in the covenants that mentions them at all.

Do any of your CCRs mention your shared walls and if so, how?
HenryS7 (Pennsylvania)
Posts: 336
Posted:
A homeowner with an opinion like that should be put on the board/committee to provide guidance on how to write the CC&Rs.

Anyone can have an opinion, but when a homeowner is tasked with taking a project and does so, they have far more validity than a homeowner who just has a bunch of opinions.

(To answer your question, our CC&Rs do address fences and shared fences. Whether or not yours should will depend on your state laws, local operating procedure, and the makeup of your community. What works for us may be very different than works for you.)
TimB4 (Tennessee)
Posts: 21,061
Posted:
This is what my last association has:

ARTICLE VII
PARTY WALLS

Section 1 General Rules of Law to Apply: Each wall which is built as a part of the original construction of the homes upon the properties and placed on the dividing line between the Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions of the Article, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts shall apply thereto.

Section 2 Sharing of Repair and Maintenance: The cost of reasonable repair and maintenance of a party wall shall be shared by the owners who make use of the wall in proportion to such use.

Section 3 Destruction by Fire or other Casualty: If a party wall is destroyed or damaged by fire or other casualty, any owner who has used the wall may restore it, and if the owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such owners to call for a larger contribution from the owners under any rule of law regarding liability for negligent or willful acts or omissions.

Section 4 Weatherproofing: Notwithstanding any other provision of this Article, an owner who by his negligent or willful act causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements.

Section 5 Right to Contribution Runs with Land: The right of any owner to contribution form any other owner under this Article shall be appurtenant to the land and shall pass to such owner’s successors in title.

Section 6 Arbitration: In the event of any dispute arising concerning a party wall, or under the provisions of this Article, each party shall choose one arbitrator and such arbitrators shall choose one additional arbitrator, and the decision shall be by a majority of all arbitrators.

MelissaP1 (Alabama)
Posts: 13,836
Posted:
A Real Estate attorney? A HOA is NOT Real Estate. It is a CORPORATION. Most of the time it is listed as a non-profit but NOT a charitable one. So a Real Estate attorney is not an expert in HOA. A HOA works more like a "club". It is a "club" made up of members whom are homeowners. Hence why it is called a "Homeowner Association". It is funded by it's member for it's member. Plus it maintains the rules to maintain itself and it's operations.

I would not take someone word of "I have a Real Estate attorney" as expert advice. What "Real Estate" are they dealing with? They deal more with the closing of houses than they do in "common areas". There is a purpose for a Real Estate attorney but their scope in a HOA is very limited.
Former HOA President
MichaelH34 (North Carolina)
Posts: 179
Posted:
TimB4: Is your assn a condo assn?

Ours are townhomes and I can't see why the HOA would get involved at that level when the homeowner owns everything. While the HOA is going to be handling roof and outer exterior replacement in the decades to come, we have no control or responsibility for anything inside the house.
AugustinD
Posts: 3,698
Posted:
Nationwide I believe that each state's common law (meaning court precedent) has established responsibilities for party walls. It's a pretty well known subject in state appeals court and state supreme court cases. (Property line disputes are legion in the courts, and party wall disputes are a sub-category of property line disputes AFAIC.)

Sometimes a state will have statutes that speak to party walls.

As for alternative dispute resolution (like the clause in TimB4's CCRs): I think such a provision is desirable, but such a provision may already exist in the OP's HOA's CCRs or in the OP's state HOA/COA statutes.
MichaelH34 (North Carolina)
Posts: 179
Posted:
AugustinD, In what way have they established responsibilities for party walls? As being the responsibility of the HOA? Specifically townhome HOAs?

As I mentioned above, I can't see the logic in the HOA being responsible for either the property or in any dispute resolution between homeowners. Our HOA currently isn't responsible for any part of the property from the walls-in of our neighborhood.

I can't find anything in the state (47F) statute or CCRs that would imply that the HOA has a dog in that hunt though searching the state statute is problematic because of the way terms are often re-used.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Interesting topic. We have 40 duplex buildings along wit 32 single family buildings so the topic and sent me to our Covenants:

Section 3. General
General Rules of Law to Apply. Each wall or fence built as a part of the original construction on the Lots which shall serve and separate any two (2) adjoining Lots shall constitute a party wall or fence and, to the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto.

While we have always looked upon this as a fencing issue, I assume it also covers the one party wall that each duplex has.
MichaelH34 (North Carolina)
Posts: 179
Posted:
I'm wondering how this clause might apply, if at all.

"5.02 Common Wall Maintenance and Repair. In the event of any damage or destruction of any common wall from any cause whatsoever, other than the negligence or willful misconduct
of one of the conjoining property owners or their invitees, the owners shall, at their joint expense, repair and rebuild such common wall. "
AugustinD
Posts: 3,698
Posted:
MichaelH34, you would have to go read the case law on party walls. For example, some chatter from a 1938 Supreme Court ruling in North Carolina:

Where the owner of lands builds a party wall partly upon his own lands and partly on the lands of the adjacent owner, and the latter builds to and uses the same: Held, equity implies that he will pay for such use one-half the cost of constructing the wall, although no express contract has been made concerning it, and upon the accidental destruction of the wall all easements therein terminate.

https://casetext.com/case/george-v-smathers-1

Don't take anything I say on this as gospel. On further reading, I think there is a lot less on the subject of party walls in NC case law than I implied above.

And yet JohnC46's covenant captures what I am thinking about what "law" and rules apply here.

I agree that, if the governing documents are clear that the party wall is in no way a part of the HOA's common area, then disputes concerning the party wall are neighbor-to-neighbor (unless some wild circumstances arise that gets the HOA involved as well, like I dunno, the HOA maintenance guy is on the roof when he should not be and the party wall gets damaged somehow on account of his doing something up there he should not be).

I do see mention of "party wall agreements" a lot on the net. Maybe the owner with the relative who is attorney was speaking of the (possible) wisdom of insisting on party wall agreements. Some chatter on such agreements: https://www.trelora.com/blog/what-is-a-party-wall-agreement/ . From this standpoint, maybe it makes sense for the HOA's covenants to address or even formulate party wall agreements. Given that like every owner at your HOA shares a party wall with another owner, the HOA's covenants addressing this issue might help minimize disputes.

"Party wall agreements" and the covenants may be a possible agenda item for the next meeting with the HOA attorney? In which case perhaps this thread will help prepare you and your board for making the most use of the time you spend speaking with the attorney on this topic.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By MichaelH34 on 02/07/2022 10:26 AM
I'm wondering how this clause might apply, if at all.

"5.02 Common Wall Maintenance and Repair. In the event of any damage or destruction of any common wall from any cause whatsoever, other than the negligence or willful misconduct
of one of the conjoining property owners or their invitees, the owners shall, at their joint expense, repair and rebuild such common wall. "
Do the covenants have a "Definitions" section? Is "common wall" defined?

I want to make sure that "common wall" does not or could not mean HOA controlled "common area."
MichaelH34 (North Carolina)
Posts: 179
Posted:
AugustinD, thank you for your thoughtful replies. They are greatly appreciated.

The covenants do have a definitions section which includes "common areas" that are HOA owned as opposed to resident owned. There's no mention of "common walls" though I'd interpreted that to be within common areas before this particular topic came up.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By MichaelH34 on 02/07/2022 10:35 AM
The covenants do have a definitions section which includes "common areas" that are HOA owned as opposed to resident owned. There's no mention of "common walls" though I'd interpreted that to be within common areas before this particular topic came up.
Just saying: At this point I too am not 100% confident about the meaning of "common wall."

I wonder if the plats maybe delineate what the "common walls" are?

You're welcome. It sounds like your HOA is lucky to have your brains.
TimB4 (Tennessee)
Posts: 21,061
Posted:
Quote:
Posted By MichaelH34 on 02/07/2022 7:00 AM
TimB4: Is your assn a condo assn?

Ours are townhomes and I can't see why the HOA would get involved at that level when the homeowner owns everything. While the HOA is going to be handling roof and outer exterior replacement in the decades to come, we have no control or responsibility for anything inside the house.

Town Homes

KerryL1 (California)
Posts: 14,550
Posted:
Our multi-story condo buildings' CC&Rs define ANY "bearing walls" in condo units as common area. "Party wall" isn't language in our assn.

In our Insurance article. If an item, say a bearing wall serves one or more units, the owners would pay their proportion of the deductible. this fits with your Sect. 5.02, Michael, and to Tim's Sect. 3.

Do not count on an RE attorney to answer this type of question. Ask your HOA attorney

AugustinD
Posts: 3,698
Posted:
Given TimB4's citation, it sounds to me like the OP's CCRs have a party wall provision.

(Thank you TimB4.)
MichaelH34 (North Carolina)
Posts: 179
Posted:
Thanks everyone, this discussion has been very helpful

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