Homeowner Notification Before Limited Common Area Repair
In late 2020, the HOA I am a member of sent out an email blast to all owners indicating that in advance of the upcoming paint project, certain exterior limited common elements need to be repaired and that impacted owners would be notified.
Nine months later, I receive a charge on my monthly statement for garage door trim repairs. The HOA never notified me that my unit was affected nor gave me an opportunity to make the repairs myself. I know that according to A.R.S. 33-1255(C1), I am financially responsible for that limited common element. The statute states “Any common expense or portion of a common expense benefitting fewer than all of the units shall be assessed exclusively against the units benefitted.”
I think it is unfair that I was never notified nor given the opportunity to make the repair myself. I consider this a form of “surprise billing.” Are there any statutes or corporation codes that require an HOA or corporation to provide notice of repair and give the homeowner an opportunity to do the work themselves or consent to have the HOA repair it?
Are surprise “chargebacks” to the homeowner for limited common element repair prevalent or rare?
Would this charge be worth appealing? It is a line item on my monthly bill and my upcoming statement has an amount due that reflects both the regular monthly assessment plus this garage door trim repair.
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Nick,
As you are well aware there is very little in the HOA/Condo world that is reasonable or fair. The specific provision that you mention in the Condominium act that is particularly heinous. I attempted to introduce legislation last year that would have eliminated that provision. A condominium has two types of property common property and individual property. The common property is owned proportionally by all unit owners and the unit owners are responsible for their share of the cost of maintenance and repair of that common property. Limited common property is used by one one or a few of the unit owners but it is still common property. The only real advantage to a condominium is the fact that the cost of maintenance is distributed to all unit owners. This is what your governing documents establish as the basis of your contract.
But the HOA industry did not like that fact even though they are the first to cite contractual obligations of the members or unit owners they don’t like the contractual obligations that apply to them. CAI and AACM through their high priced lobbyist got this provision added to the law before my involvement in the legislative process. This is a total escape clause for the association that allows them to defer most maintenance cost and repair cost to select homeowners instead of the collective whole. This is what money can buy in the Arizona legislature, totally illogical and un-rational legislation. I will continue to fight to get this legislation changed as well as others that work to protect your fundamental property rights within these communities.
Unfortunately, fighting this assessment is fruitless and will open the door to the collection vultures of the HOA attorneys that have totally unregulated and unrestricted ability and capability to add 10s of thousands of dollars of collection and legal cost to your bill. Additionally because this was based on a maintenance assessment it is subject to foreclosure action. You have no choice but to pay this bill.
I do not have the money to fight the HOA industry but votes count in this state and if only 1/10th of the 3.5 million homeowners in this community could join me in my fight to protect your rights we could see real and substantial change in this state.
Dennis
Dennis, Does ARS331255 refer only to the Limited Common Area, or does it apply to the Common area as well? Our rental condo had a no fault fire outside on the patio with no damage to the inside. We accepted responsibility for replacing windows, which are considered Limited Common Element, however the Condo Association is citing this statute as basis for us to be responsible for everything, including the outside walls, stucco, patio walls, etc, which are Common Elements. We have appealed, but our appeal was denied. Very frustrating.
Also, if this statute applies both to limited and common, then why wouldnt owners be assessed for the many repairs going on daily, such as leaky roofs, damage to stucco, etc. etc.
Cynthia,
While the provision of concern are especially heinous and inappropriate they are limited by the initial qualifier of “unless otherwise provided for in the declaration”. What that means is that unless the declaration does not specifically authorize those provisions they are not applicable to you. Most CC&R’s establish what is common property and what is the unit owners private property. In a condominium each unit owner owns his unit and an equal share of the common property. Common expenses are distributed based on the proportional share of common property. The association actually owns no part of the entire condominium complex or property. These typical payments responsibilities are “otherwise specified” making the provision not applicable. To make this statute relevant to any community it must allow either of the two payment responsibility exceptions directly in the declaration. I’ve only found one set of CC&R’s to actually do that, if your is another set let me know the name of the community and location and a copy of the page in declaration that provided that guidance. I’ll be proposing legislation again this year to delete these inappropriate provisions.
Dennis
Nick,
As a follow up on my prior response i will be proposing legislation again this year to eliminate the inappropriate provision is state statute. One key to remember is that for that provision to apply the declaration must specifically state either of those two provisions. Most CC&R’s stipulate that common property is common property and the maintenance and repair of that property is a common expense. That provision is only applicable if directly authorized in the CC&R’s. I’ve only seen one set of CC&R’s that actually invoked one of these two provision.
Dennis