Aaaaand, This Is What Happens When You Casually Allow Owners to Change Common Areas

October 2025

Tags: HOA Common Areas, Recordkeeping, Landscaping, Roofs

This article is part of an ongoing series in which we'll take your questions from the HOAleader.com discussion forum and get you the answers you need from experts who specialize in association management. If you have a question you need answered, post it on the message board.

A California HOAleader.com reader asks: “We have many improvements that have been made to the common area that were approved by the board. For example, during construction in 1986, rain gutters were an extra. Most homes added gutters. Now, if there's damage to the gutters or it needs repairs, who's responsible?

When the units were painted (we're attached homes, two to a group), the board included the painting and any needed repairs to the gutters. There was recently some damage to a gutter, and one board member took the position that the gutter was put on by the owners, so the owner was now responsible. This owner is the fourth for that property, and no documents state that subsequent owners would be responsible.

I heard there was a California case where the court took the position that a HOA is similar to a landlord in that, if they accept an improvement in the common area and that owner sells, the responsibility would stay with the HOA. That's similar to a tenant building an improvement in a commercial space and, when they leave, unless the landlord demands its removal, it becomes part of the premises. Thoughts? Can anyone cite the case?”

Here, our experts discuss this challenge, the potential California case, and how to avoid this problem altogether. 

That California Case is Elusive

That case is a mystery to Thomas W. Chaffee, a partner at O'Toole Rogers LLP in Lafayette, Calif., who, after he became the president of his own HOA, began to focus more on community association work in his legal practice. “I tried to find it and couldn't,” he says.

“As I thought about it, I determined that this is an issue of the governing documents and disclosure,” notes Chaffee. “If you were an owner and these gutters were installed 20 years ago and you read only the governing documents, would you think the gutters were only the responsibility of the association? If not, I don't think the association could say, ‘Haha! Gotcha, they're yours!'

“If a board allows an owner to change common area, I think the board should record a maintenance and indemnity agreement so that it's in the chain of title for all future owners to see,” he suggests. “If you don't take that step, and if there's any ambiguity over who's responsible, I think the HOA loses.”

Your First Response Should Be “No, thanks”

As a general rule, you should have a hands-off policy when it comes to owners muscling in on your common areas. “Generally, no owner should be touching common areas or elements,” says Gregory R. Eisinger, a partner at Eisinger Law who represents condos and HOAs throughout the state and who also teaches a course on condo law at Nova Southeastern University, Shepard Broad College of Law, in addition to Florida state-approved condominium and HOA board certification courses. “That's the property of the association.”

Except when it's not. Or it's vague. “One of the biggest issues in Florida for attorneys, especially in condos, is who's responsible for the shutters, the roof, and so on,” says Eisinger. “There are a lot of gray areas.

“I can't tell you how many documents say the association is responsible for the window frame and the owner is responsible for the window glass,” he explains. “Or the association is responsible for the door on the outside and the owner is responsible for the inside. But who's supposed to replace the door?

“I actually have a suggestion for our Florida legislators,” says Eisinger. “I think they should require developers to have a list of all the property in the community, such as doors and roofs, and who's responsible to maintain, repair, replace each. If anything is installed later, that checklist would have to be updated. That would stop a lot of litigation and headaches. I don't understand why that's not a requirement when this issue comes up day after day.” 

Where Allowing Changes Makes Sense

Just like so many issues, however, there might be exceptions to this “no, thanks” rule.

“Maybe you're doing a huge reroofing project,” says Chaffee. “It might be time to allow owners to install a skylight if they're going to take on the maintenance responsibilities going forward. At that point, you're going to have the roof off, you're doing the underlayment, and you're cutting into the roof.

“Roofs are a tricky situation because of roof warranties,” he explains. “But I had a client that had to take all the roofs off. The roofer came up with this idea that if people wanted skylights, it was the right time to do it. The board included it as an owner option in the association's own contract so there would be no warranty issues.

“We've also done it with window upgrades,” says Chaffee. “An association was taking off all the siding or stucco to fix the common area. This was a good time to allow owners to address their windows.

“Otherwise, you have to be extraordinarily careful how you let people do things to common area,” he notes. “You don't want to inadvertently create exclusive-use common area. It could be that I've bolted a fixture to the side of a common building wall, so now I'm excluding people from using the area nearby.”

Shannon M. McCormick, partner and Ohio office chair at Kaman & Cusimano, LLC, who has represented condos and HOAs throughout Ohio for about 13 years and who specializes in collections, has seen similar situations lead to owners taking over common area without the board understanding the full implications at the time.

“It could be that an owner built something in the common area, or maybe they put a shed in the common area,” she explains. “We've also seen owners installing fans on a common patio. But then who's responsible for the fans? I've also seen owners put landscaping and trees in common areas.”

Though she generally advises boards against permitting this practice, Melissa S. Doolan, an attorney at The Travis Law Firm in Phoenix, who has represented community associations for the last 15 years, has seen situations where it made sense. “I recall there was a homeowner who wanted to do a memorial for her son who'd passed,” she explains. “The owner had a specific idea she'd come up with—some type of garden, bench, and plants—and the board said it was OK.

“They agreed it could stay only while the owner lived there,” recalls Doolan. “If she moved, the memorial would have to be removed. They had it all in writing. Generally, the board felt like it was the right thing to do. I thought it was a nice gesture for the board to allow it.

“I've also had boards say, ‘The entryway to your property is ours to maintain. If owners want to decorate or change it, let's record an agreement so that the job becomes the owners' responsibility for every owner; it's not the associations' job anymore for anyone.'” 

No Matter the Change, Be Sure You're Intentional

If you allow owners to alter common areas, all kinds of questions will arise—and you need answers before owners act.

“Who's responsible for continuing to maintain this thing?” asks McCormick. “What happens when that person sells? If owners are responsible, do owners understand that? Under Ohio law, anything in the common area remains the associations' responsibility. So the owner might have an argument that the association would still be on the hook for changes made.

“That's why we recommend the board get an agreement with the owner beforehand,” she adds. “Generally that gets recorded. It should describe things like the improvement itself, who's responsible, and whether there's any insurance required going forward.”

Eisinger agrees. “If owners have the right to touch common area—maybe to put gutters in or drainage and they have to go into common area to do that—they should absolutely get approval from the association,” he says. “If the board is going to approve that, they should spell out what the owner has to do.”

That's also Doolan's advice because all the parties agreeing today may not be in your condo or HOA tomorrow. “Get something in writing between the association and that owner, and make sure it's recorded so there's no dispute over it,” she says. “I want it all documented because owners will change over time.”

Reposted from HOALeader.com

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