Fred owns a condominium that has a balcony. The deck of the balcony is a bit old and worn. It has developed cracks such that, if there is rain, the water leaks through. The deck needs to be repaired or, possibly, replaced. Who is responsible for this? Fred or the association?
Generally, the responsibility for maintenance, repair, and replacement of property within a common interest development is pretty straightforward. If it is within the separate interest belonging to the homeowner, it is the homeowner’s responsibility. If it is within common area property, the association must take care of it. If the drainpipe from your sink springs a leak, you take care of it. If the pool heater breaks down, or the asphalt needs patching, well, that’s what association reserves are for.
However, there are, so to speak, hybrid elements of the complex where the issue may be more ambiguous. Those would be what are known as exclusive use common area. These are areas outside of the airspace that defines the homeowner’s separate interest; but they are such that they only benefit, and only may be used by, a particular homeowner. Balconies, patios, and garages are the most notable examples.
During the most recent legislative session, California law was modified in an attempt to bring greater clarity to the matter of responsibility for exclusive use common area. Before considering that legislation, though, it is important first to note that a development’s governing documents can specify who is responsible for what when it comes to exclusive use common area. Moreover, different associations may have different solutions. There is no legislative mandate in this regard. The problem, in part, resides in the fact that, although they could, many association governing documents do not specifically address the issue.
(a) Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.
The owner is responsible to maintain exclusive use common area, but it doesn’t say who is to repair or replace exclusive use common area.
AB 968 amends §4775 to say: (3) Unless otherwise provided in the declaration of a common interest development, the owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest and the association is responsible for repairing and replacing the exclusive use common area. [my emphasis]
Again, we emphasize that a Homeowner Association (HOA) may, by a vote of the membership, amend its governing documents to provide differently. The law is there to provide guidance to those whose documents are silent on this issue.
So, now everything is clear, right? Well, maybe not. There’s a fine line between maintenance and repair.The bill does not define those terms. An earlier version had a provision that said, “The governing documents may define which items or actions constitute maintenance and which constitute repair and replacement.” But that provision was amended out on the Senate floor.
On the other hand, nothing in the law prohibits an HOA from defining those terms within its documents.
In all likelihood, though, one does not expect many to get into general definitions. It would be a difficult task. What seems more likely is that there will be case-by-case decisions. Could that be somewhat chaotic? Yes.
AB 968 was signed by the Governor on September 18, 2014, but it does not become operative until January 1, 2017. That will give homeowner associations plenty of time to examine the new law and to make adjustments to their governing documents if it seems called for. We wish them luck.
Written by Bob Hunt for www.RealtyTimes.com Copyright © 2014 Realty Times All Rights Reserved.