Here’s a tricky situation. If your HOA hires a contractor to maintain or fix a common amenity, who is responsible when that contractor damages real or personal property?
Consider a few scenarios:
- The HOA-hired lawn maintenance team cuts the grass, but clips your air conditioning unit with heavy equipment causing $2000 of damage.
- A condo’s roof encounters a leak attended to by the HOA’s maintenance team, but the shoddy fix ends up causing a new leak that ruins your antique Persian rug.
- A pest control team, hired by the HOA to control an ant infestation, goes into your garage to access pest entry points, but takes out an $800 side mirror on your new Tesla.
These scenarios might be more common than you think, and sorting out the liability can be difficult. Who is legally responsible? Will the HOA shell out the cash to fix the damage? Should the homeowner file an insurance claim? Does insurance cover this type of damage? Does the homeowner have to find a remedy on their own?
These are all reasonable, but tricky, questions. Message boards (like this one, for example) are filled with HOA members confused about this process. Some are angry that they have either not received much help from their HOA, or in other instances, rejected completely. It can be a big hassle for homeowners, but HOAs are in a unique position to help their residents.
(As an aside, HOA boards and management teams should always consult their legal team for advice when confronted with liability concerns.)
Here are a few things for homeowners in this situation to consider:
Read Your CC&Rs
When community associations are developed, they create conditions, covenants and restrictions (CC&Rs) that affix to each property in the association. With the help of the association’s bylaws, these agreements govern what you must do to be a member of the community. Essentially, they cover the “Do’s” and “Don’ts”. The content of the CC&Rs vary from one HOA to another. Further, each state has enacted unique law to govern homeowner’s associations, so no two HOAs have the same CC&Rs. This diversity makes the process of establishing and enforcing rules different from one community to another.
Due to the varying nature of CC&Rs, it is important to read through them carefully. Homeowners should consult their attorney for more information on their specific CC&Rs.
Your community association may require you to maintain homeowner’s insurance. Homeowners insurance is designed to help homeowners in the event of loss or damage to the property. Filing a claim may be a legitimate option for the homeowner to pursue, but it may result in an expense to you through higher premiums. It does not, however, cover personal property.
The Hired Contractor
Generally, the party that caused the damage is responsible for it, but there’s a problem. You didn’t hire the contractor. You don’t have a contractual relationship. These contracts don’t need to be in written form, so when a homeowner hires a lawn mowing company or a pest control company, they have “privity of contract.” Privity would allow the homeowner to pursue a legal remedy. A homeowner in this situation might feel stuck or alone.
Even though the resident doesn’t have privity of contract, the HOA does. Because they are the hiring party, they have the right to demand a remedy or pursue legal action. As such, HOAs may want to be advocates for homeowners to help them get an appropriate remedy for the damage caused. The problem is that the HOA itself has no vested interest other than satisfying the resident. A top notch community association may quickly come to a homeowner’s aid, but others may not be interested in restoring the homeowner for the damage that their contractor caused.
As this article suggests, HOAs should take better care of their residents. It is unlikely that the HOA will go to court on behalf of a small claim, but they might be able to take responsibility as the hiring party and pressure the hired contractor on your behalf. This kind of advocacy typically engenders great appreciation and respect from residents, which is the kind of capital not easily secured by HOAs.
There are a few things that the homeowner can do to improve the relationship with your HOA and increase the likelihood of getting the result you want. Maintaining positive communication, being active and engaged in community activities, and following the HOA’s rules will increase your rapport with the board or management company.
In the end, the system isn’t perfect and may result in insurance increases for the homeowner. HOAs, however, would be well-served by fighting for their residents and getting recompense from the hired contractor.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice. The content on this site is for general informational purposes only. Links to third-party websites are for convenience; MaxHOA and its contributors do not recommend or endorse the contents of the third-party sites.