D
ue to the locaon, design, or perhaps other reasons, many neighboring community associaons share maintenance obligaons for certain common elements and facilies that benet both communies. These shared
maintenance items may include roadways and sidewalks, club houses, recreaonal facilies, natural features such as lakes and ponds, as well as retenon basins, and drainage swales that service both communies. Since most maintenance sharing relaonships will last for the duraon of the communies and involve considerable nancial commitments, proper planning and documentaon are crical.
Since shared maintenance agreements are oen put in place by developers well before the unit owners take control of their associaons, many such agreements are wrien from the perspecve of the developer as opposed to the unit owners. A common example is when Developer A purchases mulple tracts of adjoining land and builds a community on only one or two of these tracts. Thereaer, Developer A seeks to sell the remaining tracts to Developer B. However, since the remaining tracts are landlocked, Developer B will only agree to purchase this real estate if it can secure access rights over the roadways and sidewalks of the community built by Developer A. Given the addional wear and tear that this would have upon the roadways in Developer A’s community, Developer B enters into a shared maintenance agreement. Before a unit is even sold, Developer B has already commied its community to sharing in the costs of maintaining certain roadways and sidewalks in Developer A’s community.
Somemes a developer must seek access rights from a neighboring community that is controlled by the unit owners. In these situaons, the shared maintenance agreements tend to be far more favorable to the community that is already established. Unlike shared maintenance agreements entered into between developers, there are no sale proceeds to be enjoyed by the community. Accordingly, most communies will try to extract greater concessions from the developer with respect to the shared maintenance obligaons. Not only do communies have greater bargaining power in these situaons, but also the developers’ primary concern is the ability to build and sell units. Accordingly, developers will oen agree to lopsided shared
maintenance agreements in these situaons.
The purpose of the examples listed above is to demonstrate why the perceived fairness of shared maintenance agreements can vary greatly between community associaons. The circumstances surrounding the creaon of a shared maintenance agreement will dictate its terms. Perceived inequies among neighboring communies with regard to their shared maintenance obligaons will oen arise many years aer the shared maintenance agreements have been negoated and the circumstances surrounding the agreement have long since been forgoen.
Although not as common, shared maintenance agreements do arise between community associaons in which the developers have long since le. Regardless of the circumstances, shared maintenance agreements are not to be entered into lightly. Again, it is important to remember that these agreements are longterm and will likely be in place for the duraon of the communies’ existence. Therefore, the importance of proper documentaon cannot be understated.
The individual circumstances along with the governing documents of each community will dictate the terms and condions of each shared maintenance agreement. Nevertheless, there are fundamental provisions and concepts that should be addressed in any shared maintenance agreements. The remainder of this arcle will address some of the more essenal provisions.
CONSULT THE GOVERNING DOCUMENTS OF THE ASSOCIATION Before an associaon can even contemplate a shared maintenance arrangement, its execuve board must consult the associaon’s governing documents to determine whether this type of arrangement is even permied. Depending upon what is contained in the governing documents, an amendment to the declaraon or the bylaws may be the necessary rst step towards structuring a shared maintenance agreement.
A BRIEF DESCRIPTION OF THE CIRCUMSTANCES GIVING RISE TO THE AGREEMENT Since shared maintenance agreements will oen last for the duraon of the parcipang communies, it is a good idea to include a brief descripon of the circumstances surrounding their creaon. This is especially important for shared maintenance agreements that may seem to favor one community over
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