Q: In my townhome community on Long Island, the board is mandating that we undergo inspections of the exteriors and windows of our homes by an out of doors company. If the inspectors find deficiencies, we will probably be given time to correct them, or face escalating fines if we don’t. Based on our experience, we expect that deficiencies will probably be highly discretionary. Residents own their homes and the small plots of land on which they sit, meaning we must grant the inspectors permission to enter our properties. Our governing documents already provide a mechanism to cope with obvious signs of neglect in isolated cases, but not these mass forced inspections. We keep our homes in generally excellent shape. Must we comply, and is that this even legal in New York?
A: The articles of declaration and bylaws to your townhome community will state which actions are throughout the board’s power.
Homeowners’ associations have elected boards which have a fiduciary duty to members and are charged with putting members’ interests first and acting in good faith. Boards often have wide authority to perform their duties, depending on what’s contained in the neighborhood’s documents.
In many owners associations, the bylaws state that exterior maintenance, including window repair and substitute and weatherproofing, is the responsibility of every homeowner.
Under New York law, a board’s decision to conduct a communitywide exterior inspection, and to rent an out of doors vendor to conduct it, will probably be protected by the “business judgment rule,” so long as the choice to examine was made for legitimate corporate purposes, was authorized by the bylaws, was applied to all homeowners, and was made in good faith, said Nancy Kourland, a partner with Lasser Law Group, which practices on Long Island.
“Here, it seems that the board is well inside its authority to rent knowledgeable inspection company to help it in performing communitywide inspections of all exteriors,” Ms. Kourland said.
If you dispute the inspector’s findings, you could possibly hire your personal inspector and use that report as a negotiating tool with the board over the scope of the repairs.
Even should you find that the board doesn’t have the authority to mandate these inspections, you will need to determine whether you might be willing to fight it, said Andrew Lieb, a New York lawyer who handles real estate litigation. Complying with the inspections will likely prevent hundreds of dollars on a potentially expensive and lengthy legal battle. You could also use the situation as fuel for your personal campaign for the board, or that of a like-minded neighbor.
A house owner’s association is a democracy, but living in a single involves subjecting yourself to some intrusion, Mr. Lieb said: “You’re signing up for it.”
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