How do We Determine if We or Our HOA is Responsible for Maintenance of a Retaining Wall?

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“I am a unit owner in a townhouse development of 77 units – situated within 12-13 buildings in the neighborhood association. Along the back of 3 buildings there is a large, continuous retaining walls that crosses the rear property of 17 unit owners in those 3 buildings.  About 10 feet below the large retaining wall is the resort’s golf course, but the wall is constructed within the property lines of the individual units as shown on their surveys.

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While the HOA is responsible for maintenance of certain specified components within the Neighborhood under the governing documents (i.e. driveways, paver walkways, steps, roadways, roofs, snow removal, landscaping, etc.), “retaining walls” are not specified at all in the governing documents.  Though the governing documents do state that the HOA is responsible for  the named items “by way of example but not by way of limitation”.

QUESTION:  The wall could be considered “owned” by the unit owner’s whose property it is on; but is the responsibility for “maintenance” of the wall the HOA’s or the unit owner?  How do we determine this if it is not clearly specified in the governing documents?

A simple vote of the membership would not seem fair as the owners will vote with their pocket books and decline it as an HOA responsibility since the majority of owners do not live along the retaining wall.  Those along the wall would then become the oppressed minority.

Any suggestions/ways to determine who is responsible?  The wall is in need of maintenance and perhaps replacement due to deficient construction by the original builder of 10 years ago.”

From what you’ve stated, it sounds like the retaining wall is probably the HOA’s responsibility. However, you need to look for other language in the governing docs to support that claim and every HOA is different. Other language you should check is within the sections addressing common elements, limited common elements, and maintenance duties of the homeowners. Limited common elements is where you’re most likely to find something directly applicable to the retaining wall. You may also look to see what kind of control the HOA has over the exterior of the buildings to get a general sense of its maintenance and repair responsibilities. The HOA likely wants control over the look of the wall, and such control usually comes with the responsibility of repair in townhouse communities. Not always though.

Next, you should look to see what powers the board of directors has over allocating funds for maintenance and repair (or whatever other responsibilities the retaining wall may fall under). This will give you a better idea of how to proceed. The HOA should get an estimate of the cost of repair and see how that fits into the budget. If there isn’t enough money in your HOA, it may need to levy a special assessment. Special assessments should always be put to a vote. The HOA can also start saving for the cost of repairs to lessen the immediate impact on the homeowners (assuming the repairs can wait).

Something you may also consider doing is having the HOA talk with the neighboring resort. You may be able to share some of the costs with the resort as the retaining wall is in its interest as well. If it is left in disrepair, it affects the golfer’s use and enjoyment of the facilities (but if it crumbles away, it gives your affected homeowners instant golf course views).

Your best bet in working through this problem is to meet with the HOA and discuss the problem. They may not even be aware of the disrepair of the retaining wall. You can also talk with other residents to get a read on overall sentiment towards repairing the wall. If you are unable to make any headway with the HOA, the next step is to contact an attorney who will be able to review the governing docs more thoroughly and make a more informed assessment of who has responsibility for the retaining wall. Remember: even if you determine the HOA is responsible for the wall, you still have to get it to pay for the repairs.

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Author: House Attorney

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