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Roof Decks in HOAs and Condos, Who Maintains, Who Pays, What is A Reasonable Allocation?

The cost for maintenance,repair and replacement of roof decks can be staggering. So, the question often arises as to whether the allocation being charged to owners is fair. Here is a question I received from a reader:

"Our board wants to amend our CC&Rs to read that the 2 owners who live on the top floor and have an exclusive use common area walking deck, shall pay for 100% of their area involved (about 60%). This area, which includes common area walkways and overhang, is currently costing over 92K for a renovation of the roof deck. We are not a high rise or a very upscale complex. Do you think this is fair?"

It is hard to say what is fair. There are several considerations.

The building needs a roof and I think its a given that owners should share in the cost of the roof. Not all owners use the pool in an HOA but still in most cases they have to share in the costs. It is a common amenity that is considered in determining property values, as would a roof be.

That said, if the other units in the building have decks and the owners pay to repair, maintain or replace those decks, and the owners of the top unit are avoiding paying their fair share for the decks adjacent to their units, just because they are called roof decks. That does not seem fair.

If the top floor owners have to pay considerably more to maintain, repair and replace their decks than others would have to pay for the same size deck, just because their decks contain a roofing component, that may not be fair to them.

Square footage of the deck area might have bearing. If owners maintain their decks, or pay equally into reserves to maintain, repair and replace the decks, and the decks vary considerably in square footage, style or design, and the costs to maintain, repair or replace vary greatly, should the board consider this and offer members a CC&R amendment to re-allocate the costs?

If the building has an elevator, should the costs be allocated per floor, or $0 for first floor and equal as to all higher floors since the upper floor owners use the elevator in varying degrees? Or is the elevator a required amenity of the building, the same as a roof or walls?

These matters may be fair, and they may seem unfair to some, and they may be totally disjointed. If a board is considering making a change to re-allocate costs, fairness is certainly one consideration, but there are also many others:

Does the improvement benefit the entire association, if not physically, then at least as to contributing to the value of the properties in general?

Is it an amenity to which all members have equal access, if they want it?
Is it a major or minor component?
Is the maintenance/repair cost substantial?
Is there a material difference in square footage?
Is there a rational way to determine the cost per square foot?

And last, but certainly not least...

What are the approval requirements for amending the governing documents? Many contain a requirement to seek lender as well as owner approval if the maintenance or other obligations change in a material way. And many seek higher owner approval than the general amendment provision if the maintenance or cost obligations change.

So get good legal advice if you are contemplating changes in the governing documents to promote fairness, and refrain from relying solely on the argument "We don't use it so we should not have to pay for it." This last argument has failed many times when people have complained about paying for amenities they do not intend to use.

When considering what is fair, take into account also that there may be tradeoffs. Maybe some units have decks and others have patios and the two are not consistent with regard to maintenance costs. However, if fences are involved with the patios, then that may equalize the otherwise extra expense of deck floors or railings or joists.

One more important tenet. Owners in HOAs and Condos purchase with knowledge that the documents are subject to change by amendment, and arguing against a duly [member] approved amendment can be difficult.

Full post as published by California Condo & HOA Law on August 15, 2010 (boomark / email).