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Exculpatory Clauses: Is my HOA liable for anything?

By September 29, 2013October 26th, 2018community association, condo law, HOA, HOAs, homeowners association

HOAs and condominium associations (referred to collectively as HOAs for the purpose of this blog) generally have a responsibility to maintain and repair common areas (e.g. the roof, parking lot, hallways, lobby, pool, certain pipes, etc.) as defined by their bylaws and declaration.  Beyond the common areas, however, the HOA bears little to no responsibility to a unit owner for damage done to the inside of their unit. There are very few explicit exceptions, such as, if a managing agent or other party damages a unit while performing work on behalf of the HOA.

The bylaws will ordinarily explain the extent of the HOAs liability, if any, to a unit owner in the event his or her unit is damaged.  Most HOAs have what is known as an exculpatory clause or a limited liability clause in their bylaws.  This clause basically relieves the HOA of any liability to a unit owner if a common area problem (leaking water, ice, mold, etc.) causes damage to a unit and/or the unit owner’s personal property. 

Exculpatory clauses are common yet controversial as aggrieved owners have litigated the issue HOA liability with uneven success.  In Virginia, the state Supreme Court tends to uphold exculpatory clauses.  Other states like California and Connecticut have ruled in favor of unit owners when the HOA was negligent in responding to the unit owner’s concerns in a way that exacerbated the damage to the unit.  Neither the District of Columbia nor Maryland Court of Appeals has addressed the issue. 

Typically HOAs will work with owners who, at no fault of their own, have suffered tremendous loss due to a common area problem.  In some cases, however, it may be wise to retain counsel to assist if the HOA has failed to maintain or repair a common area per the bylaws and that is what caused the damage to a unit.  In this instance, counsel may advocate for the HOAs assistance or alternatively seek court intervention to enforce the HOAs responsibility under the bylaws. 

My advice to every condo owner or prospective buyer is to read your bylaws.  At the very least, tab the sections on the Board’s duties and seek clarity on the areas that you have questions about.  This will help you manage your expectations as an owner so that you will not get in a tizzy when your ceiling leaks.  Always determine the source of the problem and then check your bylaws.  If you are still unsure, call the HOA’s management company to apprise them of the problem.  If they do not provide satisfactory assistance consult legal counsel to weigh your options.  The bottom line is this: being a unit owner is not like being a tenant with a landlord.  A unit owner has a host of responsibilities as it relates to the maintenance and repair of his own unit.  Simply read the bylaws carefully before you buy a unit so that you can educate about your responsibilities.  This will reduce the risk of headache and hardship down the road.

Yaida Ford is the managing attorney of The Ford Law Firm PLLC and can be reached via email at