Published in the ECHO Journal, January 2010
One of the most important questions in a homeowner association is “Who fixes what?” On top of this very basic question, others come up and this two-part 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 is 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.
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 his or her 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 units 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 as if 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. In my experience in reviewing condo documents, most often 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 to look 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 yet built out when the original component list was comprised.
Planned Developments (Often called PDs, 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 some was added; 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 when 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.
The Basics
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).
Determining Responsibility
Interpreting Governing Documents
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 as follows, unless the documents state otherwise: 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.
Determining Whether Davis-Stirling Act Provisions Control Over Governing Documents
It is important to understand what the law (codes and cases) says 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 I also want to mention that 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.
In Part II of this article, which will appear in the next ECHO Journal, you will find out how such things as The Davis-Stirling Act, negligence and past practices affect the outcome of who fixes what, and how to set policy to avoid the disputes that commonly arise over such things as water leaks that involve both common area and individual units.
Beth A. Grimm is a Bay Area attorney who authors books, writes articles and newsletters, is active in ECHO and other groups that serve the public who live in CIDs. She is frequent contributor to the ECHO Journal and speaker at ECHO seminars. She hosts a website, www.californiacondoguru.com, with free information for homeowners, board members and managers.