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#715-0, Michael A. Sauri v. Estate at Pope Farms, (July 13, 2005) (Panel: Stevens, Neel, and Vergagni)

The homeowner association (HOA) included a section in which there were several houses sharing private driveways. The homeowner (HO) owned one of those houses, and he filed a complaint against the HOA for discontinuing the snow removal services it had provided on those shared driveways. The HO alleged, on his behalf and on behalf of all homeowners located on the shared driveways that the Governing Documents required the HOA to maintain those driveways as a common expense. The HOA answered that the governing documents allowed the HOA to decide whether or not to maintain those driveways and it had voted not to pay for any more maintenance.

The original Declaration stated that the HOA should maintain and keep in good order the Common Area. A 2000 amendment to the Declaration provided specifically that the HOA should maintain the shared driveways within the Property. "The Association shall maintain, repair and replace, as deemed necessary in the sole discretion of the Associations Board of Directors, the Shared Driveways within the Property. The expenses shall be a Common Expense of the Association. "The amended Declaration further states "the Association may, in the discretion of the Board of Directors, assume additional maintenance responsibilities upon all or any portion of the Property. In such event, all costs of such maintenance shall be assessed only against those Owners residing within the portion of the Property receiving the additional services."

The Commission on Common Ownership Communities (Commission) ruled that the reasonable construction of the quoted provisions as a whole meant that the HOA was responsible for the services necessary to maintain, repair and replace the shared driveways in accordance with the standards of the community, and that the "as deemed necessary" language did not give the HOA the right to refuse all maintenance whatsoever. The Panel ordered the HOA to pay for fixing a rut in the driveway, and to provide appropriate snow removal and maintenance services. However, the Panel also ruled that the HOA does have the authority to levy a non-uniform assessment for services included in the common expenses which benefit some homeowners more than others. Specifically, the HOA may use this authority to assess only the homes using the shared driveways with the costs of maintaining those driveways, instead of passing those costs on to the entire membership.

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