M.K. from Bexar County, Texas writes:
Dear Mister Condo,
My condo is a second story, free standing unit above a 5-space carport. Outside stairwell leads to the covered balcony and main entrance. The balcony had a 2×6 floating deck covering an asphalt sheet and plywood underneath, much like an exterior roof but decking instead of shingles. 40 years later, after I pulled up the old decking to replace it, the asphalt paper had dried up and rain water had leaked into the plywood decking. My HOA says I’m responsible for the subfloor but the OWNER MAINTENANCE in CCR says “an owner shall maintain and keep in repair the patio and/or balcony space”. Who is liable here?
Mister Condo replies:
M.K., I am sorry that you find yourself at odds over who should handle the cost of the repair. I am assuming that the decking and subfloor are for your exclusive use and that the association is claiming the common element is limited to your use exclusively so you should maintain it. The Patio and Balcony Space referenced in your CC&Rs likely applies to all units that have patios or balconies. This stairwell leads to your balcony. You are questioning who owns the subfloor – you or the association. I have two questions. Is replacing the subfloor and paper going to be an expensive part of the repair? If not, I would simply pay for it and have the repair done. If it is going to be expensive and you feel the HOA is misinterpreting the documents, you could bring suit against them to force them to pay. Of course, suing your association for an item that isn’t likely to come up again for another 40 years sounds pretty futile to me. Weight the pros and cons and make your decision. I am not an attorney and offer no legal advice here. If it were me, I would probably pay for the subfloor (as long as it isn’t too expensive) and hope that 40 years from now, this isn’t going to be my problem. Good luck!