Some builders are now trying to meld the best features of condominium living with the best features of fee simple living by creating a hybrid of a condominium and a fee simple community: town homes and single family homes that are owned by the buyers in fee simple but have a homeowner’s association with exclusive responsibility for maintenance, repair and replacement of all exterior components. As our population ages, these types of communities will likely become more prevalent. The governing documents have to be carefully drawn to avoid the problems discussed in this article.
A condominium association has exclusive standing to assert construction deficiency claims relating to common elements, because the common elements are owned by the association. In a fee simple community with a homeowner’s association, however, the exterior components of homes/town homes are owned in fee simple by homeowners. If the Declaration of Covenants and Restrictions (“Declaration”) gives a homeowner’s association the exclusive obligation, power and right to maintain, repair and replace the exterior components of the single family homes or townhomes that are owned by the unitowners in fee simple, but the By-Laws do not confer upon the HOA exclusive standing to sue for construction and design deficiencies, does the homeowner’s association which is not suing in a representational capacity have standing to assert those claims or must all of the homeowners be joined too? In a case of first impression, in Amherst Mews Homeowner’s Ass. v. Hills Dev. Co ., SOM-L-1731-03, (January 18, 2008)(unpublished opinion, on appeal). Judge Allison Accurso, on de novo review of a ruling by retired Judge Alvin Weiss, who was serving as a Discovery Master, recently decided that the answer is that the homeowner’s association has standing to bring such claims without joining the individual homeowners.