Roof Dilemma

I have written about this issue before, but now the issue has come to a head and the board is getting pressure to "do something".

We have about 200 duplexes (100 buildings) in our community. They are 22 years old. There are two different styles, but both styles have one roof across both sides of the duplex. They are titled and recorded with the county as two separate single-family homes. They share one roof and one attic and there is no dividing line down the center of the roof. They have separate insurance policies. They are responsible for all their own maintenance, except they pay a fee to have the master HOA do their mowing and trimming. Each side pays their own individual HOA fee to the master association.

The developer should have made these condos, but he didn't. For most of the 22 years this wasn't an issue. But now many of these units have leaking roofs and need roof replacements. It's fine when both neighbors decide to get their roofs replaced at the same time. But we have a couple of situations where one side has gotten insurance money to replace their roof and the other side refuses to replace theirs.

Since there's no dividing line down the middle, the only way to do half a roof is to interweave the concrete roof tiles or cut the roof tiles down the middle. The original tile colors and styles are no longer available anywhere. The new tiles will not fit into the old tiles. Most roofers will not replace half a roof because of the warranty issue with leaks. We don't know if the county will provide a permit for half a roof (depends on who you ask at the county).

We had one case that went to mediation because the homeowner replaced her roof without ARB approval. The roof tiles didn't even come close to matching and they weren't interwoven evenly - it was a really bad patch job. She was ordered to pay to have her neighbor's roof painted to match the color of her new tiles.

I have two ARB members who are insisting that the board is somehow responsible to make people replace their roofs, or make it easier to replace one half of the roof. Our attorney basically said it's not the HOA's responsibility (or a good idea) to get involved in a dispute between two homeowners. I have asked for suggestions on what we can do to make the process better, but no one seems to come up with any ideas. There's a lot of anger but not a lot of good ideas. Tonight we had a homeowner who showed up with an application, but not the letter of permission or any engineering drawings showing how half a roof can be done. When I suggest they may need to get an attorney to sue their neighbor, I'm basically the bad guy. But they want the board to somehow intervene.

We rewrote our declaration two years ago. At the advice of our attorney, here's what they say:
7.8.2 Villa Roofs. The roof of each Villa will be treated as a separate roof serving only that Villa, irrespective of the fact that it is connected to the roof of an adjacent Villa within the Villa Building.
(a) Responsibility for Repair and Replacement. Maintenance, repair, and replacement of the roof serving a Dwelling constructed upon a Villa Lot, together with all costs and expenses of such maintenance, repair, and replacement, shall be the sole responsibility of the Owner of that Villa. Replacement of Villa roofs is strongly recommended to be done by both Villa Parcel Owners at the same time. All repair or replacement of all roofs requires ARB approval. The ARB may require tile samples as a condition of replacing Villa roof tiles, in whole or in part, and may require verifiable proof that a closer tile material is not available, including through the order of custom tile. The ARB Guidelines may require that both sides of a roof be the same color, including requirements related to painting or staining the neighboring roof to match the new roof tiles, in which case the Villa Owner doing the re-roofing will be responsible for the cost of painting or staining the adjoining Villa’s roof tiles.
Villa co-owners under the same roof should replace their roof at the same time and apply for ARB approval together. If a Villa co-owner needs to replace their roof but cannot get agreement from the owner of the other Villa under the same roof to replace his or her half of the roof, the Villa co-owner may apply to the ARB for roof replacement but the ARB application must explain in detail, with engineering drawings, the method for replacing their half of the roof and how colors of the entire roof will match. If replacement of Villa roofs is not done at the same time, the Villa Parcel Owner who is replacing his or her roof must include in its ARB application: (i) evidence that Lee County has or will issue permit for the single/one-side roof replacement; (ii) written permission from the other Villa Owner in the Villa Building acknowledging that some tiles on his or her roof will need to be removed and replaced during the re-roofing process, and that access over their roof by the roofing contractor will be necessary, or failing which, evidence of written notice and diligent efforts to obtain such permission. To the extent permitted by Florida law each Villa roof owner shall have an easement for access and maintenance upon the adjacent roof to the extent reasonably necessary to maintain, repair and replace their roof in accordance herewith.
(b) Negligence or Willful Misconduct. Notwithstanding any other provision of this Section, if the damage or destruction of the roof serving one Villa is caused by the negligence or willful misconduct of the Owner of the adjacent Villa Parcel or anyone acting on behalf or with the permission of the adjacent Villa Parcel Owner, such adjacent Villa Parcel Owner shall bear the entire cost of repair or replacement. Notwithstanding any approval requirements of this Declaration or the ARB, neither the Master Association nor the ARB shall have any liability whatsoever to any Parcel Owner for the repairs, replacements, design, damage, or any other actions or inactions of any Villa Parcel Owner, its contractors, subcontractors, suppliers, vendors, agents, designees, or invitees as it relates to each Villa Parcel Owners’ responsibility for roofs hereunder.

Here's what the ARC rules say:
2.16.4. The entire roof of a Villa must match in color and style. See section 7.8.2 of the Master Declaration. Villa co-owners under the same roof should replace their roof at the same time and apply for ARB approval together. If a Villa co-owner needs to replace their roof but cannot get agreement from the owner of the other Villa under the same roof to replace his or her half of the roof, the Villa co-owner may apply to the ARB for roof replacement but the ARB application must explain in detail, with engineering drawings, the method for replacing their half of the roof and how colors of the entire roof will match. If an exact color match to the existing tiles is not available, then written permission must be obtained from the other Villa Owner to have his or her roof tiles painted or stained to the same color as the new roof tiles. The Villa Owner doing the re-roofing is responsible for the cost of painting or staining the adjoining Villa’s roof tiles.

Any thoughts? We've considered forming a condo association just for roofs but would probably need 100% vote and we won't get that. I don't think we have the legal right to force someone to replace their roof. We certainly aren't going to pay for roofs. I'm at a loss.

I agree this is a sad situation, but it is what it is. I think the new Declaration section is well-done. The ARC rule looks fine. Be honest with owners and explain that everyone knew what they were getting into when they bought or agreed to the amendment. Inform them that the HOA's hands are legally tied. If the HOA did get involved beyond what the Declaration says, it is setting itself up for litigation from the owner on the losing end.

The latest application should be rejected and re-done to conform with the requirements in the Declaration and ARC Rule.

If one half of the roof of a duplex needs maintenance or repairs, then the HOA can force replacement. Otherwise, stand firm and follow the governing documents.

Our governing documents give the HOA the authority to get both owners to get their roofs done at the same time, but the expense for replacing the roof is assessed to the owner.

Michael, I'd be interested in hearing how this works in your community.

Thinking about this further, let's say Owner A and Owner B cannot agree about their shared roof. They come to the board to settle the issue. Owner A wants the roof, Owner B does not. Owner A has insurance money, Owner B does not (they have separate insurance policies). The board says the roof must be done. Owner B still refuses. The board gets three bids, chooses a vendor, and has the roof replaced on both sides. Both sides are assessed for their half of the cost of the roof. Owner A uses their insurance money to pay. Owner B cannot pay because they don't have the money. Either they borrow the money or Owner B gets late fees and interest tacked on to their account and a lien gets filed against them. They have a choice, either set up a payment plan with interest with the collections agent or get a foreclosure from the community.

So the downside is the HOA has to front the money for the roof and try to collect from the homeowners, possibly having to foreclose on an owner because they cannot pay for a new roof. Is the HOA liable for any construction defects? If the assessment is not paid, then the HOA has to go through the lien/foreclosure process.

I'm also wondering if this opens the HOA up to lawsuits for forcing an owner to replace a part of their home when they don't want to.