Boards and managers often face a tricky question: what happens when a homeowner wants to make an improvement that affects the common elements? Or what happens when an owner wants to make an improvement that, all things being equal, would become the maintenance obligation of the association?
Whether it’s installing solar panels on a roof, adding improvements to the residence exterior, or making other modifications on or impacting common elements, associations need a way to protect themselves while allowing reasonable owner improvements.
That’s where “Maintenance and Indemnity Agreements” come in. These agreements are useful whenever an owner wants to install, modify, or expand an improvement that extends or impacts the common elements, or when an association allows a modification that an owner has agreed to maintain.
The agreement spells out, among other things, the owner’s obligation for maintaining, repairing, and replacing the improvement, and to pay for any damage it causes to association property or other units. A well-drafted Maintenance and Indemnity Agreement should, at a minimum, address the below items:
- Assigning maintenance responsibility to the owner for the specific improvement;
- Requiring the owner to pay for any repairs or increased costs necessitated by installation of the improvement; and
- Specific requirements and terms associated with installation and use of the improvement, as well as what happens if any of these terms or requirements are violated by the owner.
Once signed by both the owner and association, these agreements are recorded with the county in which the association is located and bind all future owners of the pertinent lot/unit.
These agreements may also be useful after the fact, when an owner has already installed an improvement without approval. Instead of requiring immediate removal, the board can choose to allow the improvement to remain in place if: (1) the improvement is permitted by the association’s governing documents; and (2) the owner signs a Maintenance and Indemnity Agreement, as described above.
Maintenance and Indemnity Agreements can be drafted on a case-by-case basis, tailored to the specific improvement, or the association may wish to adopt a standard form that can be customized as needed for future requests.
By requiring these agreements whenever common elements, or associations-maintained components, are involved, associations can strike a fair balance between owner flexibility and community protection.
Should you have any further questions concerning Maintenance and Indemnity Agreements, please do not hesitate to contact an Altitude attorney at 303.432.9999 or at [email protected].