P.R. from Hartford County, Connecticut writes:
Dear Mister Condo,
I was maintaining the garden at the front entrance of our HOA community for two years. I was told that I could no longer do it because I was a liability to the association. Our HOA does have HOA insurance and when I contacted them I was told I was covered and did not need a waiver. The answer I received by our property manager stated a waiver did not hold up in court. I’m confused by the ambiguity of the answer. Please help!!
Mister Condo replies:
P.R., your desire to help with the garden maintenance at the entrance of your HOA is admirable. However, maintenance of common elements such as the garden are the responsibility of the Board. The Board is also fully responsible for minimizing liability for the association. This is the reason they have insurance. It is also the reason that most associations hire only licensed and insured contractors for all necessary work needed inside the association. Not that it is too likely that you would get injured doing the gardening but you might. And if you did, and you were not licensed and insured to do the work you were doing, the association could be found liable. It just isn’t a risk worth taking, especially considering the Board should be already handling this duty by hiring a contractor. I am sure you like doing the work and the association likes saving the money by not having to pay a gardening contractor but it is a bad business decision to allow an unlicensed and uninsured volunteer to do any work on behalf of the association. Yes, it flies in the face of reason, but it is better to be safe than sorry. All the best!
Our complex would like people to volunteer for committees, etc., but do not want to carry the extra insurance to protect them. Also, recreational waivers in CT are tricky and need to be drafted by an attorney, in addition to coverage for volunteers. Our complex drafted a “waiver” with a bunch of feel-good, legal-sounding gobbly-gook that would most likely get tossed out in court in a nano, the injured party’s attorney would have a field day. Accidents do happen – for instance, people have been known to get hit by cars when gardening, such as when two cars collide, and one car goes flying sideways into the garden; tree branches falling down onto an unsuspecting person, a neighbor’s sun umbrellas not secured, and come flying like heat-seeking missiles over the fence and land where they wish, the pole being esp very dangerous. There could be underground utilities, sewers, you never dig without calling “811” Dig. I feel for you that it was an activity from which you derived considerable enjoyment, and I’m sure it looked nice, but it is actually more risky than meets the eye.
As the Board of Directors member who is responsible for all maintenance issues, I have run into this situation several times where well-meaning residents take on landscaping chores to improve the appearance of the community. I have questioned this from the very beginning of my term and 3 + years later, it still remains an issue. I have asked our Association attorney as well as the provider of our Association master insurance and in both instances, I was advised that this is a “gray area”.
We have allowed residents to do volunteer landscaping projects in the community and around their own homes but a secondary issue has arisen. Can volunteers that are friends or family of residents help with work in the community or even in a resident’s home? It would appear that this too is a gray area and since we have no control of something of which we may not be aware, it would appear that our only “protection” is our master policy.
I prepare and update an extensive list of “Insured Service Providers” that is distributed to our residents for virtually any type of interior or exterior repairs but still, family and friends come to help out. Would a clause in our homeowner documents stand up in court if it said that all resident-initiated self-repair or volunteer undertakings, as well as any damage or liabilities resulting from such items, are exclusively the responsibility of the homeowner?
Thanks. AG
A.G., I am not an attorney and offer no legal opinion in this column. My question back to you is this: Should a legal action occur, how much will it cost the association to defend itself? That cost alone would likely nullify any “savings” the association realized with volunteer labor. Also, when developing the association’s budget, volunteer labor costs nothing and actually creates an inaccurate picture of what it costs to maintain the association properly. You can’t fire volunteers if you don’t like the work they are doing. It is a slippery slope and one I would avoid. All the best!
Other associations have a beautification committee, and some recommend having one. I’m wondering how they address this issue.
P.R., Beautification Committees don’t necessarily do the work. They make suggestions to the Board about what would look best. It is not a best practice to have volunteer laborers that could cause the association risk. At least have a discussion with your insurance agent before allowing such work so the association knows the risk it is taking.