North Carolina § 47F-3-107 - Upkeep of planned community; responsibility and assessments for damages.

§ 47F-3-107. Upkeep of planned community; responsibility and assessments for damages.

Except as otherwise provided in the declaration, G.S. 47F-3-113(h) or subsection (b) of this section, the association is responsible for causing the common elements to be maintained, repaired, and replaced when necessary and to assess the lot owners as necessary to recover the costs of such maintenance, repair, or replacement except that the costs of maintenance, repair, or replacement of a limited common element shall be assessed as provided in G.S. 47F-3-115(c)(1). Except as otherwise provided in the declaration, each lot owner is responsible for the maintenance and repair of his lot and any improvements thereon. Each lot owner shall afford to the association and when necessary to another lot owner access through the lot owner's lot or the limited common element allocated to the lot owner's lot reasonably necessary for any such maintenance, repair, or replacement activity. If a lot owner is legally responsible for damage inflicted on any common element or limited common element, the association may direct such lot owner to repair such damage, or the association may itself cause the repairs to be made and recover damages from the responsible lot owner. If damage is inflicted on any lot by an agent of the association in the scope of the agent's activities as such agent, the association is liable to repair such damage or to reimburse the lot owner for the cost of repairing such damages. The association shall also be liable for any losses to the lot owner. When the claim under subsection (b) or (c) of this section is less than or equal to the jurisdictional amount established for small claims by G.S. 7A-210, any aggrieved party may request that a hearing be held before an adjudicatory panel appointed by the executive board to determine if a lot owner is responsible for damages to any common element or the association is responsible for damages to any lot. If the executive board fails to appoint an adjudicatory panel to hear such matters, hearings under this section shall be held before the executive board. Such panel shall accord to the party charged with causing damages notice of the charge, opportunity to be heard and to present evidence, and notice of the decision. This panel may assess liability for each damage incident against each lot owner charged or against the association not in excess of the jurisdictional amount established for small claims by G.S. 7A-210. When the claim under subsection (b) or (c) of this section exceeds the jurisdictional amount established for small claims by G.S. 7A-210, liability of any lot owner charged or the association shall be determined as otherwise provided by law. Liabilities of lot owners determined by adjudicatory hearing or as otherwise provided by law shall be assessments secured by lien under G.S. 47F-3-116. Liabilities of the association determined by adjudicatory hearing or as otherwise provided by law may be offset by the lot owner against sums owing to the association and if so offset, shall reduce the amount of any lien of the association against the lot at issue. The association shall not be liable for maintenance, repair, and all other expenses in connection with any real estate which has not been incorporated into the planned community. History (1998-199, s. 1; 2013-34, s. 2.) NORTH CAROLINA COMMENT Subsection (a) allocates maintenance, repair and replacement responsibilities when those responsibilities are not otherwise allocated in the declaration. Responsibility for repair, maintenance or replacement of lots, common elements or improvements thereon may be allocated differently by express provisions in the declarations or in a duly authorized and adopted amendment to the declaration. Subsection (b) differs from the corresponding section in the North Carolina Condominium Act in that lot owners are legally responsible for the damage they cause whether or not it is covered by insurance provided by the association. Subsection (d) provides for an adjudicatory hearing process for the determination by an adjudicatory panel of damage claims in amounts less than or equal to the jurisdictional amount established by the General Assembly for small claims in G.S. 7A-210. References to small claims and G.S. 7A-210 are only for the purpose of establishing the jurisdictional amount for adjudicatory hearings under subsection (d) and for no other purpose. They are not intended to nor should they be construed to incorporate any of the rules or procedures which may be otherwise applicable to small claims under Chapter 7 of the General Statutes. Subsections (a), (b) and (c) apply to planned communities formed prior to January 1, 1999. Effect of Amendments. - Session Laws 2013-34, s. 2, effective April 24, 2013, added "or the limited common element allocated to the lot owner's lot" in the last sentence of subsection (a); and added "or limited common element" in subsection (b).