Written by Mary M. Howell, Esq.
Part I of this paper discusses the basic obligations of community associations to perform routine maintenance, repairs in the common areas, and access to homeowner exclusive access areas to perform repairs to the common areas. We explore these requirements regarding issues that affect both common areas and exclusive use areas: balconies and decks; pipes; water intrusion; pest control; and asbestos issues.
Part II of the paper reviews the case law, particularly the Lamden decision and its progeny and the Doctrine of Judicial Deference. The discussion rounds out with a discussion of the enforceability of exculpatory clauses.
A. ROUTINE MAINTENANCE
Pursuant to California Civil Code section 4775, unless the governing documents otherwise provide, the duties for repair, replacement, and maintenance are based on whether the item in question is "common area," the "separate interest," or "exclusive use common area."1 Predictably, the association is responsible for all these duties regarding the common area and the unit owner is responsible for the same as to separate interests. As to exclusive use common area, the owner of the appurtenant separate interest is responsible for "maintaining" it, while the association is responsible for repairing and replacing.2 The distinction between "maintenance" and "repair," remains a topic of discussion because the statute does not define the difference between the two and most definitions of "maintenance" include general repair.3
It is worth noting that the governing documents of an association can shift the statutory allocation regarding the burdens of maintenance and repair so a careful review of such governing documents is needed to determine the proper allocation of responsibilities. This review should include a determination of what constitutes the separate interest and exclusive use common area, especially in a condominium community where this determination can be very nuanced.
It is also not uncommon for association boards to reallocate association maintenance obligations to homeowner through an amendment to the covenants, conditions, and restrictions recorded against the subject
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property ("CC&Rs") in an attempt to ease the burden on a given association's budget. Before undertaking such an amendment, however, association boards should consider an immediate practical problem: even if the association budget is reduced by shifting maintenance duties to a homeowner, the board may subsequently be consumed in litigation to force the owner to make those very repairs, potentially negating any impact on the budget. Furthermore, there is no guarantee the owner will perform repairs in a sound, workmanlike manner, and any warranties pertaining to the repair will flow to the owner, not the association.
Because questions frequently arise as to the proper allocation of maintenance and repair allocations, an association should consider adopting, typically as part of an amendment to the CC&Rs, a "maintenance matrix," which lists the various elements within the association and designates in tabular form whether an owner or the association is responsible for the maintenance, repair, or replacement of a particular component.
B. REPAIRS TO COMMON AREA/EXCLUSIVE USE AREA NECESSITATING ACCESS TO SEPARATE INTEREST
1. CC&R PROVISIONS AND ACCESS TO SEPARATE INTERESTS
Many, if not most, sets of CC&Rs provide easements to the association for access to separate interests necessary to effectuate repairs to the common areas. Such access provisions generally require prior notice to the owners within a reasonable timeframe prior to conducting any repairs or maintenance, with an exception for emergency repairs which require no or limited notice. Another commonly encountered provision permits associations to enter units for the limited purpose of performing repairs to the separate interest ("self-help") where the owner has failed or refused to undertake such mandatory repairs (e.g., leaking toilets and plumbing fixtures). Such entry is usually conditioned on proper notice to the owner and the right should be exercised with caution. Associations should be aware that if an owner refuses to grant entry, obtaining a court order for entry may be necessary. Upon entering the separate interest, the association representatives should document notice as well as the condition of the premises and actions for repair to avoid claims of damage to the separate interest occasioned by such entry.
To combat potential claims from owners in the event occupants must vacate a separate interest during any repairs performed by an association, associations should also be aware that California Civil Code section 4775, subdivision (b) provides that the cost of such temporary relocation during the period of repair and maintenance "shall be borne by the owner of the separate interest affected."4
2. BALCONIES AND DECKS
It is not uncommon for the dividing lines between general common area, exclusive use common area, and separate interest to be unclear simply by looking at a property. This lack of certainty often arises in the case of condominium project balconies and decks, part of which may be exclusive use common area, and the balance general common area. Associations should at all times retain copies of all governing documents, including, but not limited to, the condominium plan, to understand the boundaries for all common areas and separate interests. Specifically with respect to decks, however, California Civil Code section 5551 provides that an association must perform periodic inspections, the timing and parameters of which are set forth in the statute, for load-bearing components, which are defined as "those components that extend beyond the exterior walls of the building to deliver structural loads to the building from decks, balconies, stairways, walkways, and their railing, that have a waling surface elevated more than six feet above ground level, that are designed for human occupancy or use, and that are supported in whole or in substantial part by wood or wood-based products."5 Associations should be aware that any such inspection must include "associated water proofing systems" such as flashings, membranes, coatings, and sealants.6
3. PIPES
Disagreements between owners and associations regarding the allocation of repair responsibility often arise in situations where a lateral pipe services only one unit. Unless the CC&Rs specifically address the issue and provide for a different allocation of maintenance responsibility, California courts have suggested that even though such pipe only serves one unit, the duty of repair and replacement falls on the association rather than the owner.7
4. WATER INTRUSION AND MOLD REMEDIATION
One of the most common dilemmas faced by associations is the detection and appropriate repair of leaking pipes. These problems are complex as it is not always clear what the source of the water intrusion is or if the intrusion has led to mold.
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Determining if the source of the leak is a common area element or a separate interest element is essential to properly allocate the scope and cost of repairs. Multiple sources of water intrusion can be problematic (e.g., soil piled over the weep screed, landscape irrigation leaks, or deteriorated or damaged flashing) and disputes over the source of a leak are common. Notwithstanding the source of the leak or questions regarding responsibility for the repairs, because of the potential for spiraling repair costs if repairs are delayed—including, but not limited to, mold remediation—it is generally advisable to have the repairs made quickly at the association's expense and thereafter determine the proper allocation of cost.
Furthermore, most insurance policies have a specific exclusion for mold-related claims of damage so quick detection and remediation by a qualified repair entity is of the utmost importance. Repairs should be performed to industry standards, and an association would be wise to engage the services of an environmental expert to document amounts, type, and locations of mold infestations in case it has to defend itself in any insurance claim. All elements of repairs performed by the association should also be documented as completely as possible.
While prompt and thorough investigations of water intrusion claims by homeowners is valuable, associations should not necessarily rely on the findings of a homeowner's adjuster. If leak complaints yield evidence of a wide-spread association-maintained pipe failure, the association should have an investigation performed to determine the scope, timeline, and costs of repairs. Owners should be advised to report instances of water intrusion immediately, and any such report should be promptly investigated by an association.
Notwithstanding the existence of widespread water intrusion, California courts have said that overall pipe replacement (primary...
