The vast majority of community associations operate without any employees. Maintenance, repairs, administration, and other work is typically performed by contractors retained by the association to perform a specific job. In many cases, a professional property manager, usually also an independent contractor, is retained to perform administrative tasks and oversee contractors performing other work for the association. A common question is whether an association can have members of the community perform work, either on a volunteer basis or on a paid basis. Association boards must be extremely cautious when doing this and should always consult with legal counsel in advance.

The primary reason associations have community members perform work is to save money, especially when the work involved seems simple and does not require any special skill. That is an understandable and laudable goal, but it is only one of the many factors involved. The top concern involved in these situations is liability. The main difference between someone performing work as an independent contractor and someone performing work as a volunteer or employee of the association is that in most cases the contractor is going to be liable for their own actions, whereas the association will usually be responsible for volunteer or employee’s actions. If a volunteer injures themselves, someone else, or the property while performing the work, no matter how unlikely that may seem, the association may very well find itself held legally responsible. Not only will the independent contractor be responsible for their own actions, but they should also have insurance to cover the liability and indemnify the association in the event of an injury.

Another serious concern is in ensuring that the work is done properly. When a contractor performs work for an association, not only will the association typically have a written warranty, but the law provides an implied warranty that the work has been performed in a workmanlike manner. If the association is performing the work itself, however, either through volunteers or employees, then it will have no such protection if the work is not performed properly. In that situation, not only will the association have to incur significant costs having the work fixed but it could be liable for any damage that might have been caused by the work being done incorrectly the first time.

Finally, the risks will likely be the highest if an association is paying someone to perform work, other than through the standard contracting process. Boards will often face questions of whether they are using association funds properly when they pay someone other than a professional contractor to perform work. This will especially be true if the person being paid is a board member or a friend or relative of a board member. In addition to the potential appearance of impropriety that can come along with paying an individual directly, this can also raise serious questions as to whether the person must be treated as an “employee” for the purposes of state and federal law. An association could inadvertently find itself facing issues over minimum wage, workers compensation, or tax withholdings that it is not prepared to deal with. 

For these and other reasons, association boards should proceed with caution and always consult with legal counsel before having non-professionals perform work, whether on a volunteer or paid basis. If your association is considering engaging members of the community for maintenance or other work, or if it has done so in the past, please reach out to Williams & Strohm, LLC at 614-228-0207 and speak with one of our attorneys to ensure your association is protected from unintended liability.