Can an HOA’s choice of roofing materials eliminate hot tubs that had previously been permitted?

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Can an HOA’s choice of roofing materials eliminate hot tubs that had previously been permitted?

We have a hot tub on our townhome’s roof. The unit’s trusses were reinforced during construction to accommodate it. The hot tub’s been in place for over ten years. The covenants state that the HOA has responsibility to replace the roofing membrane. The chosen manufacturer will not warranty the membrane in any way if there is a hot tub on the roof, regardless of the manner in which it sits on the membrane. Simple equation: hot tub yes, warranty no. Consequently, we are told we cannot replace the hot tubs after the new roof is installed. Can their choice eliminate our “asset”?

Asked on September 29, 2011 under Real Estate Law, Illinois

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Good question. If hot tubs are permitted at your association under the covenants, conditions & restrictions as a matter of course but the manufacturer of the new roof will not warrant its membrane if there is a hot tub upon it, the solution would be that you can have a hot tub on your roof but you waive any replacement costs paid by the homeowner's association for the roof as a common area maintence item for your particular unit.

Meaning, if you are the unit's property owner, any future problems with the roof would be paid by you out of pocket and would not be covered under the warranty of the manufacturer of the roofing components. If you sell the unit, you need to disclose this fact to the new owner in writing before close of escrow.


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