Many CC&Rs, particularly those in older communities, do not adequately identify or define maintenance and repair responsibility for exclusive use common area components such as patios, balconies, exterior doors and similar components. And when there is uncertainty between an owner and the HOA as to who is responsible for a repair, disputes are inevitable. Fortunately, Civil Code Section 4775 fills in the blanks. In the absence of well-defined CC&Rs, we look to Civil Code Section 4775 which previously provided (before 2017) that the HOA 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.
On January 1, 2017, the new language under Civil Code Section 4775(a)(3) came into effect stating: “Unless otherwise provided in the [CC&Rs] 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 HOA is responsible for repairing and replacing the exclusive use common area.” (Emphasis added.) Industry practice has held that the owner is only responsible for the basic upkeep and maintenance of the exclusive use common area’s usable surfaces, while the HOA would be responsible for any major or structural repairs to the exclusive use common area.
Since the statute does not define the term “maintaining,” a board can broadly define it in an operating rule in order to shift some of the repair burden to the owners. For example, if the board includes deck recoating as part of an owner’s maintenance responsibility, the board shifts that responsibility and expense onto the owner, without having to amend the CC&Rs. The HOA would need to adopt guidelines for deck maintenance such as:
- what to look for when inspecting the decks for damage (bubbling of deck surface, cracks in the membrane, soft spots in the deck that sag when stepped on, flashing that is pulling away from the wall, and water that does not flow to the drains)
- how to avoid damage to the waterproofing membrane
- how often the deck should be resealed (waterproofing products such as Dexotex require recoating every 5 years–sooner if there is heavy usage or damage from patio furniture, etc.)
- the kinds of waterproofing systems that are acceptable to the association
- prohibited deck systems, such as carpet and tile
- prohibited charcoal grills which are fire hazards and hot coals dropped onto the surface will burn through the waterproofing membrane
- deck drain maintenance
- deck to wall flashing maintenance
How should HOAs deal with the newly clarified Civil Code Section 4775?
- Review their CC&Rs to see if they are crystal clear about who repairs and replaces the exclusive use common area such as siding, balconies, patios, decks, planter boxes, windows, storage doors, indoor/outdoor pipes, sprinkler systems, wiring, parking stalls, doors, screens, steps to entryways, outdoor light fixtures, walkways, hallways, fences, mailboxes, porches, air conditioners, heating systems, outdoor stairs, etc.
- Adopt guidelines for the owners’ maintenance of exclusive use common area, as described above, after consulting with licensed professionals.
- Have the board and legal counsel prepare an operating rule entitled “Maintenance Responsibility Matrix” that is consistent the CC&Rs and the reserve study for exclusive use common area. This is not supposed to override or supersede governing documents, yet without timely challenge by homeowners, the content usually stands.
- Review the reserve and operating budgets to make sure the added repair and replacement expense for exclusive use common area is budgeted for and included in the annual assessment calculation.
- Survey the owners to see if they wish to amend the CC&Rs to shift certain repair and replacement responsibilities such as window replacement onto the owners to keep assessments down.
- Have the owners vote to amend the CC&Rs to shift repair responsibility for balconies, patios and similar exclusive use components to the owners and to attach a “Maintenance Responsibility Matrix” consistent with that shift in responsibility. Otherwise, the statutory language will control, leaving the HOA responsible to repair (and fund) what could be costly exclusive use common area repairs. Shifting responsibility to the owners may create some problems. First, if the owners must pay for scaffolding to replace windows, there would be no economies of scale or discount to do one window compared to the HOA replacing all windows at once. Second, some owners do not repair on time thereby causing eye sores, enforcement problems and leaks that damage the common area.
- Have the owners vote to amend the CC&Rs to clarify that the HOA is responsible for repair and replacement of certain exclusive use common area, to attach a “Maintenance Responsibility Matrix” and to provide a credit to owners who previously performed such repair and replacement. Such owners must furnish invoices and documentation to provide evidence of such expenditures.
HOA boards and management professionals must still be aware of the fact that Civil Code Section 4775’s default structure does not supersede any conflicting provisions in the CC&Rs. Moreover, even when an exclusive use common area is to be repaired or replaced by the HOA, there may be instances where a homeowner should be held responsible for the repair or replacement costs. For example, owners can cause premature failure by moving heavy items across the surface, such as large plant-filled pots, sharp legs on chairs and tables, etc. Owners can also damage deck surfaces if they are not swept because sand and grit, when walked on, will grind into the surface and damage the waterproofing. Most CC&Rs contain provisions allowing (and even requiring) the HOA to levy what is commonly known as a “reimbursement” special assessment against the homeowner to recover the HOA’s repair costs. The authority for a HOA to take such action is also supported by Civil Code Section 5725(a).