If you find areas of your HOA’s governing documents are unclear in assigning responsibility for certain building components, you are not alone. Determining who pays for what maintenance or repair cost is one of the most confusing situations a homeowner association has to handle. In condominiums and planned unit developments, different area classifications and aged buildings (that require more than just reroofing and exterior paint) complicate matters even further. Where the lines are drawn between homeowner and HOA responsibility greatly depends on whether the development is a condominium or a planned unit development (PUD).
Condominium and Planned Unit Development Maintenance Obligations
If you find areas of your HOA’s governing documents are unclear in assigning responsibility for certain building components, you are not alone. Determining who pays for what maintenance or repair cost is one of the most confusing situations a homeowner association has to handle.
In condominiums and planned unit developments, different area classifications and aged buildings (that require more than just reroofing and exterior paint) complicate matters even further. Where the lines are drawn between homeowner and HOA responsibility greatly depends on whether the development is a condominium or a planned unit development (PUD). Not in a condominium or PUD? Find out how to determine maintenance responsibility in other community associations.
| If the development is a… | Then maintenance responsibility… |
|---|---|
| Condominium | draws on precedent set in the Davis-Stirling Act |
| Planned Unit Development | merely extrapolates from the Davis-Stirling Act |
While the differences may seem small, they significantly affect a HOA’s maintenance obligations when involved with a condominium or PUD.
Condominiums
The key to good condominium management doesn’t depend on how you assign responsibilities but in anticipating how to best assure your buildings are preserved for the long run.
Simply put…
- The condominium homeowners association is responsible for all common areas.
- Individual owners are responsible for all unit areas.
Problems arise when the typically clear-cut designations of unit and common area responsibility are muddled due to unclear governing documents. By anticipating gray areas and making clear by amendment or policy which responsibility is assigned to whom, your HOA can preserve the quality of life and value of your property.
Exclusive Use Common Areas
The Davis-Stirling Act attempts to mitigate some of these problems with the concept of exclusive use common areas, or fixtures or areas located outside the boundaries of the separate interest that are designed to serve a single separate interest.
Building fixtures included in the Davis-Stirling definition of an exclusive use common area are (but not limited to):
- Porches
- Balconies
- Door frames
- Screens
While there can be an overlap in responsibility for exclusive use common area, Section 4775 of the Davis-Stirling Act states:
The owner of each separate interest [exclusive use common area] is responsible for maintaining that separate interest.
Exclusive use common area statutes always apply unless the governing documents provide otherwise. In other words, these sections are only important if the CC&Rs are ambiguous.
Commonly Unaddressed Areas of Maintenance
The Davis-Stirling Act does not address all of the areas of construction that require maintenance that your HOA should address. If your governing documents are ambiguous, unclear or fail to address other borderline areas, you should consider making your own policy.
Consider such areas as:
- Fences and balcony railings
- Skylights
- Sprayed on acoustical ceilings (which may contain asbestos in buildings constructed up to the mid-70s)
- Elastomeric coatings, planks and other deck surfaces and components
- Chimney flues (where creosote builds up)
Try to delegate maintenance responsibility as fair and reasonably as possible. Ask yourself: How much use an area gets by owners and if it’s covered by owner insurance, HOA insurance, or both? Is the area typically considered HOA responsibility? How has your particular HOA handled it in the past?
By answering these questions, your HOA’s governing documents can be clear and fair to all parties involved. If your governing documents are unclear, the best way to deal with the omission is to amend that portion of your CC&Rs. You might want to take the opportunity to update and make specific the entire issue of exclusive use common area. Remember, in doing so, you are not bound by the Davis-Stirling guidelines.
ECHO Tip
Feel free to deviate from the statutory approach if a different approach is more reasonable. Just make sure you are clear and unambiguous.
Planned Unit Developments (PUDs)
In most planned unit developments, or PUDs, the homeowner owns the ground under his or her home and the building itself.
The homeowners association traditionally is responsible for:
- Painting the exterior walls
- Maintaining and replacing the roof
- Maintaining some areas of the landscaping adjacent to the home
Few governing documents go beyond reference to painting or reroofing. Older associations might then wonder the extent of a PUD association’s responsibility, which can vary between HOAs.
Some PUD homeowners associations assume responsibility for maintaining, repairing and replacing the construction components necessary to the weatherproof coat of the building, while others assume as little responsibility as possible. PUD associations with fewer services demand individual owners to play a greater role in preserving their homes. Assuring that these owners live up to their responsibilities is a task that requires foresight, education and policing by the HOA.
Davis-Stirling Effects on PUDs
Although the Davis-Stirling Act does not provide direct guidance in maintenance for PUDs, your HOA may find it helpful extrapolate as you decide how to interpret and implement the provisions of its governing documents that address responsibility for the exterior components.
If you live in a planned unit development, you should be aware that Civil Code Section 4780 expressly provides that a majority of the owners in a PUD can vest their association with the power to deal with wood-destroying pests on a building by project or building wide basis. This includes the power to levy special assessments against the owners of homes affected.
As with the condominium association, ambiguities or lack of specificity in governing documents are good reasons to amend the governing documents. Common sense, foresight, the quality of construction, and the personality of your membership are important factors in drawing lines and defining responsibility.
Adapted from information provided by Glenn H. Youngling. Youngling is an attorney in San Rafael and a member of the ECHO Legal Resource Panel. He is a frequent speaker at ECHO seminars.