Who Is Responsible for Incidental Damages in Your HOA

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Property damage is the last thing anyone wants to think about in an HOA, but sometimes damage is unavoidable. Damage to a home can come from several sources, including storms, break-ins, accidents, or even something intentional. When an HOA intentionally damages a home, who is responsible for those damages, and why would the HOA damage a home in the first place? There is a good reason for the latter, but the former may not be so clear-cut.

What is Incidental Damage?

Occasionally, an HOA may have to intentionally damage a property to take care of its responsibilities. When this happens, it is generally referred to as “incidental damage.” A few examples include a condo association needing to open up a wall to access a main pipe or concrete being dug up for improvements or repair. While the good news is that this damage is usually scheduled and controlled so it won’t catch you off guard, it is still damage, and someone needs to be responsible for the costs.

Who is Responsible?

There is no black-and-white answer to this because it varies by association and depends on the type of damage. When determining the party financially responsible for the damage, the first place to look is in the HOA governing documents. Often, an HOA has a specific incidental damage clause in their governing documents that spells out who is responsible and for what damage they are responsible. For example, an HOA may have in their policy that they are responsible for the repair and replacement of a concrete patio that gets dug up; however, if the homeowner had added something additional to the patio like tile or epoxy, the HOA would not be responsible for the additional replacement costs of those materials.

Does it Matter What State I’m In?

State laws govern HOAs, so your state may have some verbiage about incidental damage, but since it is a civil matter, it’s more likely that it comes down to the HOA governing documents. Cities may also have laws and ordinances that dictate the extent of an HOA’s powers and responsibilities.

What is the Process When Incidental Damages Occur?

For an incidental damage claim to be filed, there must first be three conditions.

1. The HOA must have an incidental damage policy in its governing documents.
2. The damage to the unit or property must happen during maintenance or upkeep performed by the HOA or authorized party.
3. The damage has to be a direct result of the HOAs maintenance.

If the HOA doesn’t have an incidental damage policy, they are technically not liable for the damage; however, if the property owner files a complaint, a judge may side with the property owner. For this reason, it is always better to have a clear policy.

There are many ways that a policy can be drawn up to serve both the property owner and the HOA. For example, in some cases, the extent of coverage for incidental damage is capped at a certain amount per incident, and the property owner will be responsible for any additional charges. Another common policy is to require the association to replace components “like kind and quality” as the original components meaning that property owners would be responsible for the cost of replacing any additional materials that they have added to the common property.

If you are concerned about your HOA’s incidental damage policy, it is not a bad idea to have a professional review your policy to ensure its legality and advise any amendments.

Get It in Writing

In most cases, the HOA will be responsible for incidental damages because it will be written in their policy. Although skipping the clause may sound like a way to save some money, it could hurt in the back end if the property owner decides to sue and the judge takes their side. Getting an incidental damage clause into governing documents puts everyone on the same page if damage were to ever occur and gives property owners fair warning that their improvements could eventually be damaged and not replaced.