Who Gets To Choose The Contractor?

“Does a homeowner who is required to pay 100% of replacing an exclusive-use area have the right to select his own contractor?”

This is a question sent to me by a reader. The area needing repair is a walking roof deck.
In this case, the writer feels that few contractors would be willing to do just part of a job – that part that involved the roof deck only. The writer felt that most contractors would want to extend the work to include some areas of common area.

So who gets to choose the contractor, the board or the owner who will have to pay the bulk of the bill?

Good question.

In this case, since there is common area involved, I believe the board would have the right to require that the contractor be licensed and bonded (and insured fully with liability coverage and workers compensation). Good references would be important too. Even if there was not common area involved, the board may still be able to require the owner use licensed and insured contractors. Attorneys might disagree on this. [And hint – Boards should consider adopting rules that require the use of licensed and insured contractors for any work of a nature that requires a license or affects the common area, and insurance for constractors who work in a common interest development requires an extra endorsement.]

But let’s say all contractors are equally qualified to do the work, who choses? To add to the question asked of me, the contractor the owner wants will do the work for quite-a-bit less money.

The writer who sent this in wants to know if the owner is at the board’s mercy and the board can choose, asking: “is this a case of ‘’you pay the piper, we call the tune’’?

I would say the answer is probably “yes”. The Board can call the shots here. However, an owner could test the question by seeking reimbursement from the board for the difference in contract price in small claims court (the limit an individual can seek is $7500).

And, the writer asked “what if” (same type of question) a neighbor’s area is also involved and the neighbor wants to use yet another contractor.

Someone has to take the reins. I would say its the Board if common area or any area that is the responsibility of the Association is involved. And if between two neighbors, the one with more responsibility and expense ought to be able to choose the contractor.

But hopefully, the parties would be able to agree on a contractor. No point in ending up in litigation over who can do the job. There is plenty of opportunity for litigation (not recommending it of course) over the cost sharing aspect.

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