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Can reserve funds be used to pay for the insurance deductible and any repairs that are not covered by an insurance claim for damage to common elements following a wind/hail storm?

The answer (to both parts, deductible and repairs not covered by insurance) depends on the purpose of the reserve: operating or capital. If the former, then yes. If the latter, then the damage for which the claim is made would need to be something that, when repaired or replaced, would be a capital expense. 

Sara A. Austin
 
Austin Law Firm LLC
 
Reserve funds can be used for items specified in the Declaration.   As a general rule they can be used for capital expenses, but not for operations costs.  Since common elements are generally capital items, paying the cost to replace them would be an appropriate use of reserve funds.
 
Thrasher Buschmann & Voelkel PC
Stephen Buschmann
151 N. Delaware St.
Suite 1900
Indianapolis IN 46204-2505
(317) 686-4773
buschmann@indiana-attorneys.com


The reserve fund is established for the purpose of replacing certain common elements, with a lifespan of 30 years or less (depending upon who you talk to).  Most often reserve funds act as savings accounts for the eventual replacement of items such as roofs, gutters, siding, leaders, paving, sidewalks curbs and the like.  The amount of money placed in the reserve account is calculated on the basis of the useful life of the objects to be replaced, and the cost of replacement.
 
So, for example, if a roof is intended to last 20 years, and costs $1,000,000 to replace, then 1/20th the value of the roof ($50,000) should be saved every year for 20 years. That way at the end of 20 years, when the life of the roof comes to an end, the Association should have enough money to replace the roof without needing to make a special assessment. 
 
The Association should evaluate the roofs and other components about every three to five years to see if they will reach, fall short of, or exceed their useful lives.  If, for example, the roofs won’t last as long as expected, then more money has to be put into the reserve fund (generally meaning that maintenance fees must be increased).
 
So, to answer your question, if a storm happens, for example, and wrecks a 10-year old roof, and insurance money is provided for a completely new roof (minus the deductible), then the amount in the reserve fund representing 10 years of money collected toward a new roof, can be removed from the reserve fund. The Association can simply start over with respect to the roof reserve, once the new roof is in place.  The new roof gets a new 20-year useful life, and the Association can start collecting all over again toward the day, 20 years from the date of replacement, when the useful life of the roof will come to an end. In such a scenario, it is possible for the Association to remove the funds dedicated to the roof up to that time and place it in the operating account, then that money can be used for the deductible.
 
The key work is “possible”.  An evaluation of the reserve fund is important before removing any  money from the fund.  If, for example, three other building components are never going to reach their proper useful life, then perhaps the money should stay in the reserve fund, and the deductible for the insurance policy would be better expended from the operating fund. These are judgment calls and require the use of the Board’s sound business judgment and discretion.
 
Robert Griffin, Esq.
Griffin Alexander PC
415 Route 10 
2nd Floor
Randolph NJ 07869-2100
rgriffin@lawgapc.com
Tel:973- 366-1188
Fax:973-366-4848