#40-06, Chase v. Georgian Colonies (February 13, 2007) (Panel:Sample, Negro, Oxendine)

The homeowner (HO) filed a dispute with the Commission in which she claimed that her basement stairway retaining walls, which were starting to collapse, were common elements that belonged to the homeowners association(HOA) and should be repaired by the HOA; alternatively, the HOA was liable to repair them because the poor grading of the common areas caused water to flow into her backyard and damage the walls.

At the hearing the HO produced a plat survey, in which the exterior walls of her house and other houses were outlined in heavy black ink, and this outline included the two stairway retaining walls.She claimed that she was given this survey at settlement, and that the heavy black lines referred to common elements.However, the survey did not carry any note or other explanation explaining what the heavy black lines meant.In its defense the HOA pointed to the bylaws and declaration, which defined as the homeowner's responsibility all parts of the house and grounds which were intended for the sole use of the unit owner, and argued that this definition included the basement stairway retaining walls.There was no expert evidence to show why the retaining walls were failing; but the HO did produce a 10-year old report that suggested that her own patio was badly graded and that the retaining walls were showing signs of stress.The HO showed she had replaced the patio with one correctly graded, and she testified that her unit had been the victim of bad grading of the common elements in the past and had been the subject of a prior Commission decision.

The panel ruled that the documents showed that the walls were limited common elements and therefore the HO's responsibility to maintain and repair.It further ruled that there was insufficient evidence to show that the walls were failing due to poor grading of the common areas near the HO's house because the only impartial report issued that referred to the walls did not state the cause of the failure, and it also mentioned poor grading of the HO's own patio.The panel dismissed the complaint.