The home owners association of my community is planning a major special assessment for roof replacement. In the past 5 years, a number of the units had their roofs replaced at the cost of the owners or former owners, not the association. Most of these roof replacements were obligated by either home insurance requirements and/or conditional to sale transactions. In a recent meeting on the subject, the board of directors verbally suggested that owners of these units can be exempt from the special assessment. Is this legal since there are no rules in the association's bylaws that would address such exemptions?
My recommendation. You need to have an attorney review the governing documents to determine whether the roofs are supposed to be maintained by the association. Now, assuming that the roofs are supposed to be maintained, the Board could likely grant an "exemption." As I see it, the Board had a fiduciary duty to maintain the common elements and presumably failed to do so. As a result, these unit owners were forced to repair their roofs in order to sell their home or to obtain property insurance. Now, if these unit owners are charged special assessments they would be effectively double charged resulting in damage due to the Board's breach of their fiduciary duties. In other words, the Board generally can't exempt a unit owner from the duty to pay assessments, but I think in this situation the obligation to pay assessments is wiped out by the damage caused by the Board.
Michael T. Ross, Esq.
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Real Estate Attorney
The association only has the authority to replace roofs if the roofs are common elements of the community. This would be normally be the case in a condominium but would be unusual in a development of single family homes. If the association has the duty to replace roofs, the unit owners who replaced their own roofs should be reimbursed, not exempt from the assessment. If the individual unit owners, rather than the association, have the responsibility for repair and replacement of roofs, the association has no authority to assess for the replacement of roofs. You should have an experienced real estate lawyer review your community's organizational documents and advise you on the best way to proceed.
Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.
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