Q: I recently had water damage which my homeowners’ association (“HOA”) is repairing. During reconstruction, the contractor found termites. My HOA instructed me that it was my obligation to treat for termites. When I bought my townhome in 2008, I was told my HOA would provide termite treatment. I recently found out that the HOA terminated that contract, and we were not made aware of the termination. Since the townhomes are connected and share walls, isn’t the HOA obligated to provide the termite treatment?
A: First, let’s distinguish between condominiums and townhomes. Condos are covered by the NC Condominium Act. In a condo, the unit owner basically owns only the space between the walls, ceilings and floors. All other parts of the building (structural and exterior) are common elements, which the HOA maintains. If the HOA board of directors elects to provide termite treatment, that would be an HOA expense since it relates to the common elements, not the unit interiors.
Townhomes are governed by the NC Planned Community Act. With a townhome, the unit owner owns all parts of the home itself (structural, exterior and interior), as well as the lot it sits on. Most townhome covenants, conditions and restrictions (CCRs) require the HOA to provide some level of maintenance, typically limited to exterior surfaces of the home (roof, walls, driveways and sidewalks) and some landscaping. Any repairs or maintenance that are not specifically allocated to the HOA by the CCRs, by default, are the unit owner’s responsibility.
A common problem is that the CCRs for many townhome communities are vague or ambiguous about exactly which components of the exterior the HOA is responsible for. Many exclude windows and doors from the list of HOA responsibility. Does that mean just the glass, or are the frame, sashes, flashing and locks/hardware also excluded? What about storm doors or windows? Many CCRs require the HOA to “maintain, paint and caulk exterior surfaces.” Does that mean the HOA must only caulk and paint wooden trim and other exterior surfaces, or does the HOA also have to replace the siding and trim when it deteriorates? Many townhome CCRs require the HOA to provide repair and replacement of roofs. Does that mean just the shingles? What about the vent boots, underlayment, the wooden sheathing beneath them, gutters and downspouts, soffit and ridge vents? Who is responsible for repairing broken water or sewer lines within lot boundaries?
Rarely is the foundation in a townhome, or the “dirt” around and under it, or the “bones” of the building, an HOA responsibility either. Owners are generally obligated to maintain, or likewise, to protect against termites, these types of structural components.
Though I can’t say for certain without reviewing your CCRs, your HOA likely is not obligated to provide termite treatment and a warranty unless the CCRs specifically require it, as that would probably not be considered routine maintenance or repair of the exterior of the home.
We draft a lot of amendments to CCRs for townhome communities to clarify the division of responsibility for maintenance. Your board may want to review the maintenance provisions in your CCRs to determine if they need tweaking to provide more clarity.
This column was originally published in the Home|Design section of the Charlotte Observer on October 26, 2019. © All rights reserved.
ABOUT MIKE HUNTER
Mike Hunter’s practice focuses on community and condominium association law. He represents more than 700 associations across North Carolina.
Mike’s background includes real estate and litigation, with a concentration in the area of creditors’ rights, including debt collection, bankruptcy, foreclosure, lien enforcement, and collateral recovery.
From 1995 to 2006, Mike served as an assistant attorney for the Mecklenburg County Sheriff’s Office, primarily in the areas of civil process and judgment enforcement.
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