WHO FIXES WHAT IN A CONDO OR TOWNHOME? – Article by Unknown
One of the most important questions in a homeowners association is “Who fixes what?” On top of this very basic question, others come up and this article will provide answers.
- What exactly is the problem?
- What is the correct “fix”?
- How do you figure out who is responsible if the HOA/Condo documents are not clear on the subject?
- What does the Davis Stirling Act tell you and how which controls, the governing documents or the Act?
- Can the Board decide who fixes what if the documents do not say?
- What if the Board is too slow, can an owner fix it and get reimbursed?
- What if the reverse is true the owner is too slow, can the board do the work and get reimbursed by the owner?
- What’s the benefit of having a maintenance policy?
- Can the Board just adopt a policy or do owners have to vote on it?
- What if someone causes the damage that needs to be repaired; are they responsible to fix it?
When do these questions come up? Do Boards often just decide to sit down and figure it out? Or does there have to be a problem first? (Suggestion don’t wait for the problem.)
Budget Time: It comes up for the Board at budget time how much money do we set aside in the operating budget for maintenance this year? What about reserves? What do we save up for? What work needs to be done to prolong the life of the buildings, roofs, fences, etc.? What is the association responsible for?
Problem Reported By Owner (or Board Member): It comes up anytime an owner finds something that needs to be fixed, and comes to the board with a request to make the repair or a request for reimbursement for something the owner repaired.
Problem Reported By Outside Party: It often comes up at time of sale when there is a termite report indicating that damage due to termites or dry rot is necessary.
Accidents: It comes up when a tub overflows or icemaker pipe bursts and floods out the neighbor below.
The questions tend to arise more often in a condominium complex or a townhouse where the residences are in the same building or anytime that the housing is attached than in a single family detached home (any of which might be in a common interest development), but they can come up in any situation where the regulatory documents are unclear.
THE VARIOUS TYPES OF PROJECTS AND COMMON MAINTENANCE ISSUES
Condominium, Comprised of Units and Common Area
In a condominium, the owners usually own the buildings and structures housing the units (called common area) as tenants-in-common (often including carports and recreational facilities and the like) and each owner owns the airspace in their unit. Owners (or residents/tenants by delegation of rights) often have exclusive use of a balcony, deck, patio and sometimes a garage or carport space. In a condominium, owners are usually responsible for the paint on their walls, the flooring on their floors, and often for the plumbing fixtures within the unit space such as the toilet, flange, outlets, tub and shower drains, etc. Sometimes the owners are also responsible for cable, wiring and plumbing that serves their unit if the point of the separate service is outside the unit.
The association usually maintains the buildings, foundations, and structures in a condominium development and everything outside the unit and pays for it by collecting assessments.
Commonly, the real arguments happen over doors, windows, ceiling replacement, drywall, plumbing pipes in the wall, balcony rails and floors, patio slabs, and the like because there is no mention of these things in the documents. These seem, like they should be part of the units but commonly are left out of the description. With regard to windows and doors, when they are mentioned in the definition of a unit, sometimes it is in terms of surfaces or glass only, and not the entire item. Balconies and slabs are commonly areas of confusion. Often, at least in original documents, there is little clarification. Most often in my experience in reviewing condo documents, the association is responsible for the balcony structural parts including the railing and flooring and the owners are responsible for keeping the balconies clean and free of debris, and must take measures not to damage the flooring, such as protecting plants with water retainers so flooring does not rot from over-watering. Responsibilities can be different of course. One starts with the governing documents looking for language or clues as to what the responsibilities are. Other documents that might be helpful to the determination of the developer’s intent as to how maintenance responsibilities would be defined are the first few reserve studies done by the developer. However, caution is advised because sometimes important components are left out because they were not contemplated by the original plans but added later, or they were not built out yet when the original component list was comprised.
Planned Developments (Often called PD or PUD, Comprised of Lots and Common Area)
In a townhome situation where the homes are attached, the association does not own the separate interest Lots (those owned by individual owners) but still it often has responsibility for roofs and painting of the buildings that house the townhomes, and sometimes has responsibility for siding replacement, foundations, etc. Arguments often arise about responsibility for siding, usually when it comes time to paint, because it is common that the board is told by the painting contractor that the siding is shot and won’t hold the paint or allow it to do its weatherproofing work.
So what does one do when the question comes up that requires a determination of responsibilities with regard to maintenance?
Single Family Homes With Shared Amenities
Usually, responsibility for maintenance is pretty simple in a common interest development where the homes are completely separate from each other. Still, issues can arise over things like fencing where some of the fences are on the border of common area property and some are between two lots, or some fencing is original and then some was added and the added fencing may be under a different responsibility situation. It could happen if the association has any responsibility for roofs, painting or even landscaping front lawns, which is sometimes the case. In these situations issues may come up over who is responsible for tree root damage if the association or owner maintains the trees, and the roots cause damage to areas that are the responsibility of another party altogether, or if one of the parties cannot fulfill their responsibility because of the action or non-action of the other party. An example of this might be that the association is responsible for the front lawns or roofs, but these areas cannot be properly maintained unless the owner maintains the irrigation system, or if the owner has installed satellite dishes, solar installations or otherwise caused damage to the roofs before they should have needed to be replaced.
What exactly is the problem?
One has to identify a problem correctly in order to determine responsibility for it. Water leaks are notoriously areas. An owner might see mold around a window frame and ask the association to replace the window and/or frame. The association might tell the owner the window frame and window are the owner’s responsibility. All the time the parties are fighting over this, it may be that the real problem is a roof leak trailing along the eaves or inside the walls and culminating at the window.
What is the correct “fix”?
Once a problem has been diagnosed properly, then a proper “fix” needs to be identified. The parties may fight over what the “proper fix” is. In one California case, after the trial court judge and the appellate court judges disagreed, the California Supreme Court ultimately found that (very general interpretation) if the Board had a plan in place to address damage or a problem (in this case the problem involved termite damage and eradication), and the owner disagreed with that plan (Board wanted to do spot repair and eradication as working on various areas and owner wanted tenting and the works), the court would not second guess the board, but would respect the Board’s judgment. The case is Lamden v. LaJolla Shores Clubdominium (1996).
INTERPRETING GOVERNING DOCUMENTS-THE THRESHOLD CONSIDERATION
Questions: What do the Association Documents Say? This is the first place to go! How do you figure out who is responsible if the HOA/Condo documents are not clear on the subject?
First, it is important to understand the hierarchy of the documents. It is this: unless the documents state otherwise, as follows: The Articles of Incorporation is the charter document and is filed with the State of California Secretary of State. The Bylaws are the organizational document and should contain the voting rights; meeting requirements (membership and board meetings); the nomination and election requirements; board duties, authority and responsibility; and hearing and notice processes and matters related to running the corporation. The “CC&Rs” (Declaration of Covenants, Conditions and Restrictions) are within a document that is recorded with the local county recorder and the legal impact is that owners have constructive legal notice of their presence by virtue of the fact that they are recorded in the public records. So this is where you want to have all regulations and restrictions on the properties and the owners’ rights, responsibilities, and use/maintenance of the properties. The CC&Rs generally take precedence in the order of integrity over the other documents if there is a conflict. However, be advised, there may be language or original filing processes in/of the documents themselves that causes arguments over this premise.
Last but not least are the association rules that were adopted pursuant to authority in the governing documents (which is required). These carry weight but not as much as the CC&Rs and other documents mentioned. The arguments over rules tend to arise because of differences of opinion about whether (1) clear authority exists, (2) the board exceeded its authority in adopting the rule, (3) proper rules adoption procedures were followed, and/or (4) whether the board can add detail and rules that “go further” than what the documents say exactly.
REVIEWING THE DAVIS STIRLING ACT AND OTHER LAWS AND DETERMINING WHETHER ITS PROVISIONS CONTROL OVER WHAT IS IN THE GOVERNING DOCUMENTS.
It is important to understand what the law says, (codes and cases), and when the law controls and when the documents control. Often, the law does give a hint by the terms “unless the documents otherwise provide (documents control), or “notwithstanding anything in the governing documents” (law controls). Sometimes cases have been decided that “overrule” what documents say. Examples stand out in the areas of allowing pets, approval of drought resistant landscapes, and choices of roofing materials. As for maintenance responsibilities, I know of no cases that overrule the documents or application of the Davis Stirling Act in the area of maintenance in any California homeowners association. One caveat: I must except consideration of the complicated area of construction defect issues as this article does not address responsibilities related to pursuit of or use of damage awards from developers flowing from a construction defect claim. And also want to mention that the maintenance-related cases tend to focus on the actions of boards, and whether there was a breach of fiduciary duty or negligence rather than overruling common document provisions.
Sometimes it’s easy to interpret the documents, and sometimes it is not. When the governing documents are not clear, the law can step in to provide a definitive answer. Sometimes, the answer is still not clear.
Let’s take what should be a simple topic namely roof maintenance. Who is responsible to replace the roof? Look in the documents first. What do they say? If the documents require the association to maintain and replace roofs, the association should save for the work and must perform it. If they don’t specifically mention roofs, the next inquiry is: are they part of common area or part of the owner’s separate interest. In a condo, roofs are usually part of the common area. In a PD, they are usually part of the owners’ individual property (lot). To determine ownership, check for definitions of unit in a condo (usually airspace) and residence unit or lot in a planned development (usually includes everything on the lot). But, do not stop there because the requirements for maintenance of the roof may not align with ownership. In other words, the association may have responsibility for the roof, but not have responsibility for dry rot in the framing of the residence unit even though both are within the owner’s lot.
California Law On The Subject of Maintenance and Repair in Common Interest Developments
The law that applies to maintenance in common interest developments in California is found in the Davis Stirling Act-Civil Code Section 1364. That section defers to the CC&Rs if they specifically address a maintenance item but it also forth a default position if the documents do not define who is responsible.
That law is stated below; and I have interjected some commentary ( in red) to assist in understanding it. As you can see, the legislators felt compelled to include solutions where termite damage is found and it needs to be repaired.
** CIVIL CODE SECTION 1364. MAINTENANCE, REPAIR AND REPLACEMENT OBLIGATIONS; TERMITE AND PEST CONTROL RESPONSIBILITIES; NOTICE OF REPAIR REQUIREMENTS; TELEPHONE WIRING AND ACCESS.**
(a) Unless the CC&Rs provide otherwise, the association is responsible for repairs, necessary replacements and maintenance of the common areas in a CID, other than “exclusive use common areas”, and the owner is responsible for maintaining his or her separate interest and “exclusive use common area”.
Comment: You have to be careful here because a reading of this statute could lead one to believe that Owners are responsible for deck, garage or carport repair and replacement in a condominium project (since these areas are often designated as exclusive use common areas), and that is not NECESSARILY the case. Relying on this statute alone without combing the CC&Rs for language relating to responsibility for maintenance of these items or the structures could lead to a problem. Example if a deck is cantilevered a opposed to free standing, allowing an owner to attempt replacement could jeopardize the structure. Attorney advice with regard to these maintenance issues is a very good idea.
(b) (1) In a community apartment project, condominium project or stock cooperative (as earlier defined by Section 1351), the association is responsible to repair and maintain the common areas damaged, destroyed or infested by wood-destroying pests or organisms (to the extent repairs are required) unless the declaration (CC&Rs) has different requirements.
(2) In a planned development, each owner is responsible to maintain his or her separate interest (usually the entire area constituting a “lot”) as damaged, destroyed or infested by wood-destroying pests or organisms unless the declaration (CC&Rs) has different requirements. This obligation could be shifted to the association upon approval of a majority of members of the association, and the association would then be entitled to specially assess for the costs of repair, replacement and maintenance under this subsection.
Comment: Although (2) says that a majority of owners is enough to shift termite responsibility to the Association in a planned development, a question could arise if a CC&R amendment is required for the change and the Declaration requires more than majority approval to amend. It would be wise to seek legal advice if there is a conflict between what the Declaration requires to amend and what the statute says is required to change the scheme of termite and organism damage responsibility. Majority approval might be sufficient for a one time shift; however, if the CC&Rs require for example 75% to amend, then no amendment can be recorded with majority approval, except under a petition process whereby an HOA can apply for a lowering of the percentage required for an amendment by a judge (Civil Code Section 1356.).
(c) The costs of temporary relocation (if relocation is required) necessitated by repairs and maintenance which is the responsibility of the association, must be borne by the owner(s) of the separate interest(s) affected.
(d) (1) The association may require temporary relocation of any occupants of a CID as reasonably needed to afford prompt, effective treatment of wood-destroying pests.
(2) The association must give notice to owners and occupants involved of the need to temporarily vacate not less than 15 nor more than 30 days prior to the date relocation is required. The notice must give the reason for the temporary relocation, the date and time of the beginning of treatment, the anticipated time of the termination of treatment, and must let the occupants know that they are responsible for their own accommodations during the relocation time.
(3) Proper notice can be accomplished by either:
(A) personal delivery to the occupants and first-class mail (postage prepaid) to the owners if different than occupants, to the most current address on the association records; or (B) sending a copy of the notice to the occupants and first-class mail (postage prepaid) to the owners if different than occupants, to the most current address on the association records.
(e) “Occupant” means owner, resident, guest, invitee, tenant, lessee, subleases, or any person in possession of the separate interest.
(f) Owners (or their service providers) have rights of reasonable access to common areas for the purpose of maintaining internal and external telephone wiring (which is designated as “exclusive use” common area by Section 1351(i)(2). The access and placement of exterior wiring is subject to consent of the association which shall not be unreasonably withheld.
Comment: Subsection (a) provides the general overview, but the subsections (b) – (f) provide more specifics on maintenance and repair. If the CC&Rs define the obligations differently than the statute, the CC&Rs generally control. “Appurtenant” practically speaking means adjacent to, touching, or meant to be a part of and cannot be separated legally from. Sometimes exclusive use areas are described in the governing documents for the association and sometimes they are not. They are described above in Section 1351 (i). Figuring out responsibilities for maintenance, replacement and repair obligations is often difficult because of a lack of specific language so it may be necessary to seek the assistance of knowledgeable legal counsel. Besides reviewing and considering the CC&R provisions and the statutory references and requirements, past and current practices, reserve studies and policies may have some effect should a legal claim arise and consistency of enforcement may become an issue. Since this is a common area of dispute and disagreement, it helps to have an experienced professional assist in handling the issues and questions that arise. Sometimes it requires a CC&R amendment to clarify things.
As already stated above, in a condo situation,, the association is usually responsible to maintain all common area (which includes the buildings) except for exclusive use common areas. In a planned development, the owners are usually responsible for maintenance of everything on the individual lots, unless, as to both of these types of developments, the Declaration says otherwise.
This is definitely an area where you want to have good legal counsel. As you can see what seems should be a simple topic becomes complicated when you have to determine which controls, the documents or the statute, or the case on topic.
The sooner you get the correct information in such a situation, the better for everyone. Boards get into real hot water sometimes if they misinterpret the maintenance obligations. They might collect money for years for repairs to some component that is not the association’s responsibility, or alternatively, fail to collect reserves for a component that is the responsibility. The association can be sued and board members sued for breach of fiduciary duty in either scenario.
HOW TO SET LEGALLY ENFORCEABLE POLICIES AND/OR RULES REGARDING MAINTENANCE OBLIGATIONS
Now, to answer the rest of the questions:
Can the Board decide who fixes what if the documents do not say?
Answer: the board (with the right kind of expert help) is in the best position of anyone to decide what the correct interpretation of responsibilities is by analyzing the existing facts and intentions of the developer (by review of the first few reserve studies and any past practices), and by seeking input of a knowledgeable expert about what the law adds to the inquiry.
What if the Board is too slow, can an owner fix it and get reimbursed?
Answer: This is a risk for an owner. If the documents contain language allowing for this, it is clear. If not, then an owner might be able to get some recovery of money spent in small claims or another court venue, or through attempts at ADR (Alternative dispute Resolution such as mediation or arbitration.) However, there are no guarantees.
What if the reverse is true the owner is too slow, can the board do the work and get reimbursed by the owner?
Answer: this depends completely on what remedies are provided in the governing documents. Look for language on reimbursement assessments, individual assessments, fines, and the like. It is also important to know that if the Association is going to take this kind of action, it is best to first offer the owner a reasonable opportunity to do the maintenance, and also to give the owner notice and an opportunity to appear at a hearing if the owner is going to be charged for something in this scenario. If the documents do not authorize any of these remedies, or entry on the separate interest property of the owner, then the board may have to go to court.
What’s the benefit of having a maintenance policy?
Answer: Hopefully the idea of good business judgment and application of the business judgment rule, which is the same type of consideration described in the Lamden case above.
Can the Board just adopt a policy or do owners have to vote on it?
Answer: A maintenance policy or maintenance “matrix” which is a type of policy defining maintenance responsibilities in chart form (a very beneficial tool if accurate) generally can be approved by a board after pre-adoption circulation of at least 30 days to members to allow a comment period. It would be treated like a rule modification and be subject to the requirements of Civil Code Section 1357.100 and the series following. Some documents require owner approval of rules so it is best to get a legal opinion on the proper procedure. No one wants a rule or policy or matrix that is problematic in enforcement because of a procedural adoption issue.
What if someone causes the damage that needs to be repaired; are they responsible to fix it?
Answer: Ahhh, this is a very good question. And it is important to know this!
HOW NEGLIGENCE FITS IN TO ANY INQUIRY ABOUT RESPONSIBILITY
Most people would naturally go to the cause first, and assume that whoever caused the damage that required the repair or replacement is responsible to do the work. By doing so, one may forget to check the documents!
A good example of how the failure to check the governing documents can cause problems is found in a California case Franklin v. Marie Antoinette Condominium Owners Association, Inc. (1993). In this case, a central plumbing system in a condominium association leaked and caused damage to an owner’s hardwood floors. The owner demanded replacement of the damaged flooring. The association was responsible generally to maintain the common area (and therefore responsible to fix the leak) but it was not held responsible to pay for the damaged flooring. This was because of an “exculpatory clause” (one allowing “escape” from liability) in the CC&Rs. The court said:
“Although the CC & Rs require the Association to maintain and repair the common area (see § 1364, subd. (a)), the CC & Rs do not require the Association to reimburse a condominium owner for property damage caused by a central plumbing leak which occurred in the absence of negligence by the Association. The CC & Rs contain an exculpatory clause which states in relevant part: “[T]he Association … shall [not] be liable for … damage to … property in the project … resulting from … water … which may leak or flow from outside of any unit or from any part of the building, or from any pipes, drains, conduits, appliances or equipment or from any other place or cause, unless caused by the gross negligence of … the Association, its Board, officers, the manager or his staff.” FN7″
A few things important to note that came from this case are:
(1) Such an exculpatory clause is not against public policy.
(2) Such an exculpatory clause would not apply if the Association had been found negligent.
(3) Negligence of one party otherwise protected by language in the documents would negate an exculpatory clause.
(4) An exculpatory clause like this does not negate the responsibility to insure that is otherwise stated in the governing documents.
An example of negligence that would have hurt the association in the above or any similar situation would be to ignore a leak in the common area once it has been reported, and allow it to cause damage to a unit or units by the failure to repair, or to take the mistaken position that it does not have to fix the leak because it is in an area of plumbing that is the owner’s responsibility. This can occur by failure of a board to investigate when a leak is reported. And this can lead to responsibility also for damages to a unit that would otherwise be the owner’s responsibility.
RECAP AND CONCLUSION: BENEFITS OF GOOD POLICYMAKING
As you can see, identifying components and repair, maintenance and replacement responsibilities is an important aspect of running a homeowners association. And a board can use some good expert help in the area of reserves planning and also interpretation of the documents, law and other factors such as intention of the developer and past practices. It is important to understand that negligence can change responsibilities as well, even those set forth in documents, or a policy or matrix. However, the importance of good and consistent policies cannot be stressed enough. Remember that boards can get some court deference if challenged on a position related to maintenance obligation if a policy, procedure and/or plan is developed to deal with any or several maintenance requirements. Policy setting is straightforward. And gather all of the information and expert assistance that you need to draft the policy. With regard to maintenance policies, consider setting up a Maintenance Matrix that presents the board’s interpretation of responsibilities for maintenance, repair and replacement of improvements in the development. Such a policy would help greatly in terms of:
- Promoting consistency in enforcement of obligations from board to board
- dentifying problems areas before there is a “fire” to put out (or a complaint)
- Engendering cooperation on part of owners because of a written policy as opposed to off the cuff statement.