Responsibility for skylights - owner or HOA?

Our HOA has a number of townhomes with roof skylights. The HOA is responsible for the roof, and owners are responsible for windows. There is no mention of responsibility for skylights in the governing docs. We need to determine responsibility for the skylights.

Are you on the Board? Is the word skylights in your governing docs? Please cite verbatim anything that is written about skylights.

Are skylights in your reserve study??

Are they openable? How old are they?

With no knowledge or experience with this topic, I'd say they are "windows," given their function, and are owners' obligation to repair & replace. As with the windows in my condo, there are lot of ways I could damage them or improperly maintain them..

In my opinion,

The HOA is responsible for skylights if they were part of the original unit as a standard feature or option by the developer. If the HOA permitted owners to later add skylights, they are the responsibility of the owner.

I usually do not comment on Condo issues because I have always owned and managed in SFH HOAs.

This one seems easy for me, and I agree with Dean. I feel that if the Skylights were installed by the developer and not added by the condo/townhouse owner they are part of the roof and would be the responsibility of the HOA.

Someone's gonna have to help me understand why the HOA should forever be obligated to repair/replace EVERY developer-installed component?

Why!!! Answer this question, why is a condo owner responsible per governing documents, for replacing items like windows and light fixtures
when they are builder installed?

There are many brands and color hues to these items, one day there will be 50 different types and colors of light fixtures and
about 20 different colors and styles of windows. one day imagine looking at a condo and it is no longer uniform. And don't tell me the unit owner
is supposed to by X brand specifically and no other, we all know people will do whatever they want then cry like a schoolyard sissy
when they get a letter from the HOA that X is the wrong color and style. It's best to let the HOA do the work and deal with the installer directly.
Far less headaches and drama.

SIGH....

Hi I thought there was another thread on this exact same issue.

It really depends on what is called out in the docs. State condo law also weighs in on this topic.

This info is specific to NJ.
My condo doc does not call out skylights in the reserve study and is not mentioned anywhere. So it looks like any unit doors, windows and skylights specific to the unit is the unit owners responsibility. Also the State condo laws does not call out skylights windows and doors. A lawsuit of an association against the developer for another issue the court decided that if it is not called out in docs then items like door windows and skylights of a unit is the condo owners responsibility. We just completed a roofing maintenance project and we did not touch the skylights but we did put roofing silicone all the way around the skylights.

The original poster will need to see if the docs has the info and what her state condo laws state if any.

Your declaration likely defines common elements and limited common elements, if you declaration provides the owner maintain the limited common element, it is the owners responsibility. If not, it is the HOAs responsibility.

The argument before a judge, who will rule against the HOA in court, is the language clearly states the repair responsibilities of the owner and limits the HOA from including more. The items that owner is responsible for is limited to doors and windows. An HOA would have a very difficult case trying to claim the declaration means skylights too.

I actually have experience with communities that were developed over a number of years and under changing economic conditions. These include my own community. A person who understands what they're looking at can pick out the buildings in my community that were constructed during and after The Great Recession/Housing downturn.

But...

Changes like this have to be consistent with the original CC&R's. If they are not, then the CC&Rs have to be amended to account for new construction standards. As a result, you shouldn't have these kinds of inconsistent apportioning of maintenance items. The newer decks and patios may be smaller, but they will be handled along with the older ones - either unit owners are responsible for these things, or they're not.

In condo communities, if the changes are significant, they will probably involve a re-allocation of the par value/percentage of ownership and thus the amount of assessments. The membership would have a say about it, because changes to calculations of condo assessments normally require unanimous approval from the membership.

In the OP's community, the CC&Rs are silent or ambiguous about the skylights. As we see, experienced regular posters have different takes on whether they should be handled like windows or like part of the roof. So the odds of even a thoughtful and responsible board getting this wrong are pretty high. That's the time to get the lawyer involved. Get a written opinion at least and/or consider amending the CC&Rs to include the skylights. It will help head off future disputes.

Before reading the responses herein, and so reading the sole post by the OP, I reasoned that the function of roofs is to keep rain, snow et cetera out of living/working spaces and to provide some insulation from the elements in general.

The function of windows is to let in light, with a subordinate function being to let in light without letting in rain, snow et cetera, while providing some insulation (but not nearly as much insulation as a wall or roof).

The skylights were not installed with the purpose of protecting the living/working spaces from the elements. The skylights' main function is to let in light. I say the skylights are windows. I would vote accordingly were I on the board.

So my first (of two) conclusions is the opposite of DeanJ's.

I do not think the 'vague and ambiguous' rule for contract interpretation really comes into play here. I am leaving out any thoughts on the vagueness yada here of the Declaration.

My second conclusion is that the enemy here is not the HOA nor any owner. It is the court system and all the money that could be put into this. If a board majority sees this as I do, then the HOA/COA would put the maintenance responsibility on the owner. Subsequently let the disgruntled owners try to sue. I think disgruntled owners would be foolish to do so, given the cost of litigation vs. the cost of maintaining the skylights. Tack on how the HOA insurer //will// use this to justify a premium increase.

First, you are not 100% sure of this. I would not bet one way or another on what a court would rule. If someone forced me to bet, I would just shake my head, continue to resist and say, "It's not worth it. Courts go both ways in disputes over the meanings of words in contracts and declarations all the time. Even lawyers with good command of HOA and covenant law avoid predicting what a court will say."

Second, if per chance you do feel 100% sure of this, then in my experience observing trial courts and reading appeals court decisions, you have not spent enough time reading HOA case law.

It sounds like the questions is: Is a skylight a window?

Good point, Cathy-- perhaps there's other relevant language in the CC&Rs or even perhaps in some sort of Arch. Guidelines document. But Brenda isn't responding.

We installed about a dozen skylights on the roof of a SFH. The ONLY purpose for most was to let light into the house. For 2 interior bathrooms & the primary bedroom, the skylights are openable, had screens, etc. for the bathroom to let moist air out & fresh air and light in -- like a window.

For the primary bedroom, a very large skylight, when open, let cold air for good sleeping, and, of course, light during the day.

Would the estimate, Dean, say "roof replacement???"

The thing is, we're arguing for and against on the basis of the skylight's *function*.

The issue in condos and other attached products is the skylight's *ownership* and the owner's responsibilities as defined in the CC&Rs.

Perfect example: decks and balconies. In my community these are limited common elements that are maintained by the unit owners. In Kerry's high rise, they are also limited common elements (if I recall correctly) but are maintained by the association. These items have the same function in both communities. But due to the structure of our buildings, it makes sense to handle them differently.

As I mentioned upthread, I can make good arguments for and against handling skylights as windows and as part of the roof. In the OP's case, the problem is that the CC&Rs don't say which, and I don't think we're going to get there without seeing the CC&Rs in the entirety (and maybe getting a legal opinion in writing because either interpretation is "reasonable").

Well the board will call it a window and the member will call it the roof.

If they can't agree, it would be up to the member to challenge the issue through the courts for a ruling. This could cost more then a full skylight replacement.

It's both - because it functions as a window (lets in the light) and as part of the roof (keeps out the rain). That's why I said looking at its functions isn't very helpful - looking at its ownership/classification (common elements or unit) should be. Unfortunately the CC&Rs in this case are silent on this.

The board in this community should really consider amending the CC&Rs to clarify this. An amendment is a whole lot cheaper for everyone than going to court.

the HOA should take full responsibility for the roof and maintaining the skylight, since the governing documents say that the HOA must maintain the roof, and skylights are built into the roof, and you don't want owners hiring outside contractors to go on the Roof.

However, the cost of maintaining the skylights should be assessed to the owner of the unit. why? the skylights are not in the governing documents, so the owner would have a very hard time convincing a judge that the HOA has an obligation to maintain something that's not in the governing documents. also, not all of the Townhomes have a skylight, so there's an issue of fairness to the other owners. also, if an owner does not want to pay, the HOA could choose to maintain the roof by removing the skylight, in the extreme case.

In this vein, I motion that the OP check to see if the Declaration states that repairs for xyz benefiting less than all units may be assessed to the owners of the units so benefiting.

Such a Declaration clause is common.

From the Minnesota Uniform Condo Act:


(d) If the declaration so provides, the association may assess any common expense benefiting less than all of the units against the units benefited. In that case the common expense shall be allocated among units benefited in proportion to their common expense liability.

This would certainly be easier than reading the Declaration and having a long-winded, not dispositive discussion like that herein.

So what.

Could make a difference since roofs are almost always common elements in condo communities, but may not be in townhouse communities. The townhouse communities I'm familiar with are Planned Unit Developments. Owners own the entire structure of their home, including foundations, roofs, and the land underneath. So in these cases, any skylight would be entirely the owner's responsibility.

So I assumed for the sake of discussion that the roofs in Brenda's community are common elements since she said that the association was responsible for them.

It could also make a difference if the skylight is considered a limited common element and how that particular community handles these items. In my community unit owners maintain them; in Kerry's the association does. So it's far from universal.

ElleN's citations of Minnesota law that allows an association to assess individual owners for common expenses that benefit a subset of owners is pretty typical, I think. I know my Declaration has similar language.

So JeffT2's comments about the association handling repairs and billing the owner are on point. That is a sensible way of handling it if the CC&Rs are otherwise silent on a particular maintenance item. You don't want individual owners hiring random (possibly uninsured) contractors to do the work and risk voiding warranties or getting injured or whatnot. Or heaven forbid somebody decides that it's a DUI project.

So once again we confirm the lack of consensus on this topic. We're good at that around here...

This isn't exactly what I was looking for, but our Declaration says:

Section 11.03: Special Individual Unit Assessments. The Board may levy as assessment against an individual Unit, or Units, to reimburse the Association for those costs incurred in connection with that Unit or Units properly chargeable by the terms hereof to a particular Unit (such as, but not limited to, the cost of making repairs the responsibility of a Unit Owner). Any such assessment shall become due and payable on such date as the Board determines and gives written notice to the Unit Owner subject thereto.

But I know I've seen wording similar to what ElleN posted. Unfortunately, I tend to find things while I'm looking for something else - and I'll think "that's interesting" and go on my merry way. Which means I often won't remember where I spotted the interesting item.

I'll post anything else I find if I can track it down...