QUESTION: Can a board add, change, or make up rules that are not in the CC&Rs? Our board decided that all condos with wood/gas burning fireplaces can ONLY use gas. I bought a condo with a wood fireplace. It was important to me. I do not like that they arbitrarily made this decision without homeowners' input. In addition, the first offense will cost $1,000 and the second offense $2,000. Can they do this?
ANSWER: If you review your governing documents, you will find language authorizing your association to adopt rules. In addition, you will likely find broad language authorizing it to address health and safety issues. As with all things one might enjoy, fireplaces and stoves are now heavily regulated throughout California. The reasons involve health and safety.
Safety. Wood-burning fireplaces can produce large amounts of soot and creosote which coat the interior of a chimney. The buildup can create dangerous chimney fires. The danger can be avoided with regular cleaning of the chimney but most associations and condo owners seem unsure who is responsible for it and neither wants to pay the bill. Our firm has written legal opinions for many associations interpreting their CC&Rs on this issue. We've amended even more documents to make duties clear.
Pollution. Then there is the pollution problem. In most areas of the country, wood-burning stoves and fireplaces are the largest source of pollution generated by residences. In some areas, they create 80% of airborne particulates during the winter. According to the Environmental Protection Agency (EPA), "The fine particles in smoke...can get deep into the lungs, harming the lungs, blood vessels and heart. People with heart, vascular or lung disease, older adults and children are the most at risk." To address this problem, the EPA issued new regulations in 2015 restricting wood-burning devices.
Most counties in California now regulate or ban wood-burning fireplaces and stoves in all new construction. For example, beginning November 1, 2016, wood-burning devices are banned in all new construction in seven San Francisco Bay Area counties. Nine counties in the San Joaquin Valley not only limit them in new construction, they also require all existing wood stoves be replaced with an EPA certified wood stove when a home is sold.
Reasonable. Is it reasonable for a board to require owners to switch to gas? As provided in Civil Code § 4350, to be enforceable rules must:
1. Be in writing.
2. Be within the authority of the board conferred by law or CC&Rs, articles, or bylaws.
3. Not be in conflict with the law or governing documents.
4. Have been adopted, amended, or repealed in good faith.
5. Be reasonable.
A judge would likely find the gas-only rule meets the above criteria since both state and federal regulations already restrict the wood-burning stoves and fireplaces.
Maintenance Responsibility. Determining responsibility for maintenance of fireplaces in condominium associations can be challenging. Older CC&Rs are generally silent about fireplace maintenance, repairs and replacement. There is a difference of opinion in the legal community. Some believe the fireplace falls outside the boundaries of the unit and is entirely the responsibility of the association. That includes the chimney, flue and firebox. There is a contrary opinion that makes the fireplace box part of the unit and the responsibility of the unit owner, especially since the only the owner receives a benefit from the fireplace and if something were to go wrong with the fireplace it would likely be due to the owner's actions.
In addition, if the CC&Rs make the owner responsible for mechanical equipment servicing their unit, that this includes the fireplace. Many municipal codes define mechanical systems to include anything that provides heating to a unit. For example, Section 103 of the LA County Mechanical Code entitled “Scope” states, “The provisions of this Code shall apply to the erection, installation, alteration, repair, relocation, replacement, addition to, use, or maintenance of any heating, ventilating, cooling, refrigeration systems, incinerators or other miscellaneous heat-producing appliances.”
Chimney Fires. The chimney vents hot gases, soot and embers from the fireplace. Over time, the inside of the chimney is coated with soot, which can lead to chimney fires. According to the National Fire Protection Association, there are 26,000 residential chimney fires each year. In addition, bird nests or other obstructions in chimneys can lead to carbon monoxide poisoning when gases are forced into units. Associations should inspect and clean all common area chimneys on a regular basis. Depending on the type of materials burned in fireplaces and their frequency of usage, chimneys could need cleaning every year.
Recommendation: Boards should consult with legal counsel to determine fireplace maintenance duties and with a professional chimney sweep regarding inspection and cleaning schedules. In addition, governing documents should be amended to clearly assign maintenance, repair and replacement responsibilities for fireplaces.
Barbecues. See safety issues related to "Propane Barbecues."
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.