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Use & Maintenance
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Use Restrictions


An association's governing documents will almost always contain provisions that impact the manner in which a member's separate interest can be used. Members and prospective members should be familiar with the restrictive use provisions contained in their association's governing documents to be certain that their use of the property is not going to subject them to potential costly proceedings which challenge the manner in which they are using their separate interest.


The declarations of most common interest residential developments restrict the units or lots in the development to residential use.  Members should carefully review the governing documents to get a clear understanding of how "residential use" is defined and the nature and extent of restrictions on use. Frequently, a declaration prohibits all business uses, or limits business use to uses that comply with certain specified criteria (i.e. business that do not increase traffic or use signs). In addition to the governing documents, local ordinances and state laws may also have definitions that impact a member's use of their separate interest.


When an association's use restrictions are challenged in court, the courts generally are inclined to enforce reasonable use restrictions contained in the governing documents so long as they do not violate public policy. There are also certain types of restrictions on residential use that state statutes and/or court decisions specify as "void" and a state's statutes should be reviewed to determine if any such statutes apply.  Uses that have been challenged by associations and/or neighbors and upheld by courts are residential care facilities, day care homes, and co-occupancy by unrelated individuals. The governing documents of most common interest developments also generally contain use restrictions that prohibit "noxious or offensive activities"  and/or "any activity that is or could become an unreasonable annoyance or nuisance to neighboring owners."


Frequently an association's governing documents contains restrictions that impact owner's rights to sell or to lease their separate interest property.  Restrictions  that affect a member's ability to sell should be enforced in a reasonable manner and should not arbitrarily or unreasonably restrict an owner's ability to sell their separate interest property in the development.





Maintenance of Common Areas


Unless the governing documents provide otherwise, an association is responsible for repairing, replacing, or maintaining the common areas, other than exclusive use common areas. State statutes also impose duties on associations to maintain common areas within a common interest development.  An association member may bring a court action against the association for damages caused by the association's negligent maintenance, or its failure to maintain, the common area property within the common area development that it is responsible to maintain.  An association may also be found liable for injuries that occur off of the development's property, if the injury resulted from negligence on the part of the association such as where the association fails to maintain tress that it was responsible for. 


Maintenance of Separate Interests


Association members are  responsible for the maintenance of their separate property interest in the common interest development. The association's governing documents should state exactly what portions of the improvements are part of a member's separate interest and state statutes generally add clarity in the absence of satisfactory provisions contained in the association's declaration. Typically, unless the declaration provides otherwise, if the walls, floors, or ceilings are designated as the boundaries of a separate interest, the interior surfaces of the perimeter walls, floors, ceilings, windows, doors, and outlets located within the member's separate interest are part of the separate interest, and any other portion of the walls, floors, or ceilings are part of the common area.  


The resolution of disputes between associations and members over maintenance responsibilities necessitates an examination of the association's declaration to ascertain exactly how the separate interests and the common areas have been defined, as well as how the scope and limits of the respective maintenance and repair duties that are described in the declaration.  


Architectural and Aesthetic Restrictions


The governing documents of most common interest developments contain restrictions that impose aesthetic and architectural controls on the owners' use of their separate property interest. Courts generally allow associations broad discretion on the content of architectural restrictions so long as the association has applied reasonable standards in making its architectural decisions and has adopted and followed reasonable enforcement procedures relative to the restrictions. 


Member Modifications to Separate Interests


An association's board and/or architectural review committee should obtain information about the impact of proposed owner modifications and should take appropriate steps to avoid unnecessary problems. The board , or committee, should require plans and specifications in appropriate cases, and the use of licensed contractors with proof of insurance, and by requiring owners to sign indemnity agreements that impose liability on the member for damages caused by their improvements or modifications.  An association's failure to require and/or enforce the use of a licensed and insured contractor could result in serious financial consequences to the association and the owners. Frequently, associations and members who are trying to save money by using an unlicensed  and/or uninsured contractor or a handyman, have caused expensive damage to common areas by cutting through load-bearing walls, electrical wiring, and pipes. It is not uncommon for an uninsured contractor to cause damage that may not be covered by the association's insurance policies and the ultimate financial responsibility for the damage falls on the association and/or the individual members..