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Dear Poliakoffs,
We live in a small development of single-family duplex homes. There are 102 villas with shared roofs. The community was developed in 2002 and our roofs, being 20 years old, need to be replaced. Our declarations make no mention that the HOA is responsible for replacement
Many homeowners’ insurance policies are now being cancelled because the roofs have not been replaced. The problem is that many homeowners have experienced leaks over the years, while the attached neighboring home has had no leaks. Those neighbors refuse to agree to replace their side of the roof often stating “it will last much longer than 20 years” or they do not have the funds available.
We contacted several roofing contractors who stated it’s too costly to replace only one side of the roof and actually declined the work. These same contractors provided a ball-park price of over $60,000 for a new metal roof.
Is legal action against neighbors the only recourse for getting these roofs repaired? We cannot imagine 20 or more homeowners suing one another.
Signed, J.H.
Dear J.H.,
I have seen this exact issue play out in townhome communities throughout Florida. And, when I have drafted townhome community covenants in the past, this is always one of the primary areas of concern.
Townhome communities are an odd hybrid because they can be either established as condominiums or, as yours appears to be, they can be single family homes governed by a homeowner’s association. When the community is a condominium, the statutes control a lot of issues related to roofs, mandating that the association insure the common element roofs against hazards (and make hazard-related repairs when required). Plus, as the roofs are usually a part of the common elements (jointly and severally owned by everyone), most condominium declarations provide that the association must maintain and replace the roofs as a common expense (or, sometimes at the expense of the individual owner, though that is somewhat more unusual—but at least the association has total control over the repair).
In an HOA, however, it’s completely variable. Your declaration could provide that the association is responsible for some, all or no aspects of roof maintenance. I have seen HOA-governed townhome communities where the association is responsible for all aspects of roof repair and replacement, whether due to wear and tear or a casualty, just as you would expect in a condominium; but I have also seen declarations that leave 100% of the responsibility to the unit owners. And, some declarations will provide that the HOA insures the roofs and repairs them in the event of a casualty, but that ordinary wear and tear (and replacement due to age) is up to the individual owners. The only way to know for sure is to review the governing documents. While your documents did not come through with your letter, most townhome declarations provide that when a roof must be replaced, all affected unit owners must share the costs; and that any unit owner can sue one or more neighboring owners when needed to compel the replacement. The prevailing unit owner can typically recover his or her legal fees. Unfortunately, even without such language, if the solution is to replace the entire roof (and that is very often the case), your only way to force your neighbor to share those costs is through a lawsuit. Yes, it seems ridiculous for the entire community to be embroiled in mass lawsuits. Yes, the developer screwed up when they drafted the documents and didn’t provide any guidelines for these repairs. But what other choice would there be? Depending on the language of your declaration, perhaps the association could fine your neighbor for violating the rules, but that’s unlikely to get your roof replaced.
What I would recommend here, assuming your declaration provides no guidance at all, is that the association engage an attorney to draft an amendment to your declaration either transferring responsibility for the roofs to the association; or, instead, establishing very specific enforcement protocols for roof repairs. For example, an HOA declaration could provide that, where the owners of a townhome cannot agree to coordinate the replacement of a townhome roof, and when a licensed vendor verifies that part or all of that roof must be replaced, the association has the right to engage such vendor to replace the roof, and the cost of the replacement may be charged to the affected unit owners as an assessment, to be collected with full lien and foreclosure authority. There are a lot of variables that might affect the exact language, but a creative attorney will provide your association with a number of options for how roof replacements can be handled going forward; and after that it’s just a matter of convincing sufficient owners to approve the amendment (certainly some will be hesitant—but if they are reasonable people they will realize that even if this issue doesn’t affect them today, tomorrow it could be their roof that will need to be replaced, and their neighbor who refuses).
Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to [email protected]. Please be sure to include your location.
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