HOA board may have power to regulate exterior of your home

Question: I live in a small development governed by an HOA. Our declaration of covenants states that “no patio-villa owner shall in any way deface or change the color of the exterior of his patio-villa. Exterior walls, roof and the fencing around the courtyard are to be maintained by each patio-villa owner in quality condition at all times.”

The new board has decided to interpret this rule to mean that no wreaths or any other decorations can be hung on our fence and no chairs or benches may be outside the unit — even though it is on our own property and kept in nice condition. Am I correct in saying they are reading this wrong and going a little too far? — C.S.

Answer: I think it is a stretch to say that hanging a wreath constitutes “defacing” something, or not maintaining it in quality condition. I also don’t see how putting chairs or benches on the exterior of the home would constitute failing to maintain the patio-villa in quality condition, either. So, it does seem that your board is interpreting the quoted language in an extremely broad manner.

However, it is very likely that your declaration of covenants contains other language that would allow the board to restrict the display of objects on the exterior of the home, including the placement of outdoor furniture and other decorations. The declaration may either contain language stating the board may create reasonable rules regarding the use of the property (including the lots), or it may give the board the right to promulgate architectural controls. So, while I do not think the language that you quoted would be sufficient on its own, it would not surprise me if the authority to restrict exterior decorations or furniture does exist, in some form.

As a side note, while a wreath is considered by many to be a religious item, it would not constitute discrimination to prohibit all decorations, across the board, whether religious or not (and including wreaths). It would only be discrimination if the board were favoring certain types of religious decorations over others.

Q: I live in a courts-style community. After Hurricane Irma I lost several tiles on my roof (as did several other residents).

The president of the association is refusing to fix the roof, stating the tiles are only there for aesthetic purposes. Our bylaws state the association is responsible to maintain everything on the exterior of our homes. The president has completely ignored my request, including refusing to remove the loose tiles from my roof. I finally called the condominium maintenance department, and they removed the loose tiles. But, my concern is that, with heavy rains and hot sun, my roof will eventually leak, and that damage will be my responsibility to repair.

What are my options? Is there a government organization that I can get in touch with? — E.E.

A: While I know roofs contain a lot of different elements that are responsible for its waterproofing, I do not think it’s fair to say roof tiles are solely cosmetic. And, whether or not they are cosmetic, the association has multiple obligations to maintain, repair and replace the common property — and that would include maintaining it in an aesthetically complete condition.

Boards are entitled to make reasonable business decisions regarding the level of maintenance that is appropriate for the community, but at some point, completely failing to repair an element damaged during a hurricane (where it is clear under the Condo Act that the association is in fact responsible for repairing the damage), and particularly something that reasonably provides at least some waterproofing to your home, would likely constitute a failure by the association to abide by its responsibilities under both the Condominium Act and your governing documents. The failure might be sufficient to constitute negligence in the event that your roof does leak as a result of the missing tiles and your home is damaged as a consequence.

However, there are very few options for you to pursue this issue, other than through litigation. The Division of Condominiums only has jurisdiction to investigate financial issues, election disputes and failure to allow inspection of records. And, while most condominium disputes are subject to mandatory arbitration, that mandate does not include claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property — and there is a good chance that an arbitrator would find that this issue falls within that area. So, other than pressuring the board as a whole, your only recourse would be to sue the association and to ask a judge to order the association to maintain the roof, as required.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to condocolumn@gmail.com. Please include your hometown.

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