Ground-floor owners help pay to waterproof the lanais above them
Ground-floor owners help pay to waterproof the lanais above them
2026-09-10 · Hawaii · Courts
A Kauai association may charge all 56 owners equally for waterproofing lanai decks on the second, third and fourth floors, including the ground-floor owners who get no deck out of it. Certiorari was rejected on June 10, 2026, so the point is settled for this association.12
Frost v. Association of Apartment Owners of Pu‘u Pō‘ā, No. CAAP-23-0000436, memorandum opinion filed February 27, 2026. Unpublished.
The building, and why it produces this question
Pu‘u Pō‘ā is cantilevered. Its post-tensioned concrete slabs are simultaneously the roofs of the units below and the lanai and atrium decks of the units above. Leaks into living spaces have occurred on all lower floors since 2012. The association bid Duradek waterproofing for floors two through four and proposed to charge it as a common expense.
The ground-floor Frosts, excluded from the work, sued for a declaration that the cost be specially assessed to the upper-floor units instead.
What the declaration said, and what followed
Applying Harrison v. Casa De Emdeko — the declaration and bylaws are the contract between owners and association — the panel read Part 3.B(4), which includes in each apartment “the inner decorated or finished surfaces of all walls, floors, and ceilings… lanai and atrium air space.”
“As a matter of law, the roof/lānai slab is not part of an Apartment. Nor is the slab’s surface. Only the outside air space above the slab surface is part of an Apartment.”
On who pays: “It is uncontroverted that Duradek is ‘roof-grade waterproofing.’ It can also serve as a finished walking surface, but that is an incidental benefit of the product. It doesn’t mean a second-floor apartment must bear the entire cost of the Duradek that protects a ground-floor apartment from water intrusion, and protects the structural integrity of the condominium’s multi-story buildings.”
Why this is a strong position for boards — and where it stops
Building-envelope work routinely draws the objection “I get no benefit from this, so I should not pay for it.” Frost is a clean answer: the controlling question is not benefit, it is what the declaration’s apartment definition includes. “Lanai and atrium air space” is common phrasing in Hawaii declarations of that era, and it puts the slab on the association’s side of the line.
The statutory backdrop fits. HRS § 514B-137(a): “Except to the extent provided by the declaration or bylaws, the association is responsible for the operation of the property, and each unit owner is responsible for maintenance, repair, and replacement of the owner’s unit.” The declaration is the variable, which is why the first step in any dispute of this shape is to read it rather than to reason from fairness.
Where it stops: a declaration that defines the apartment to include the deck, or that expressly allocates lanais as limited common elements with a corresponding maintenance allocation, produces a different answer. Under § 514B-143(b) property insurance “shall include the units, the limited common elements, except as otherwise determined by the board, and the common elements” — so limited common elements are a genuinely separate category, and which one the lanais fall in bears on how the work is bid.
The evidentiary warning, which is the part to actually act on
The association won, but not on its own expert evidence. The panel threw that out:
“The AOAO did not submit a declaration or affidavit from either witness. Their letters, authenticated by the AOAO’s counsel, were inadmissible hearsay… We disregard that evidence in our de novo review.”
It affirmed anyway on the remaining admissible material. The next association may not have that cushion. The instruction is concrete and cheap to follow: get a signed declaration or affidavit from every engineer and consultant whose opinion is going into a summary-judgment record. A consultant’s opinion letter forwarded by counsel is not evidence, however good the opinion is.
The allocation question that comes before the bid
- What does the apartment definition include? Surfaces only, or the structure beneath them?
- Are the lanais limited common elements, and did the board make a § 514B-143(b) determination about them?
- Is the product being purchased structural protection or a finish? The panel’s reasoning turned on Duradek being roof-grade waterproofing whose walking surface is incidental — a purely cosmetic deck resurfacing would not carry the same logic.
- Is the assessment ordinary or special? Section 514B-148(e) bars a board from exceeding its adopted annual operating budget by more than twenty per cent absent an emergency or majority owner approval, and requires a written resolution of findings before imposing an unapproved assessment.
What to watch
Whether any published Hawaii decision takes up the lanai-slab allocation question. Frost is unpublished and its reasoning is declaration-specific — persuasive for buildings with the same language, and no help at all to a building with different language.
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