Line Replaced. Patrick Jennison had a leaky sewer pipe two feet beneath his condominium's concrete slab that vented sewage into his unit. The Dover Village Association cut through Jennison's floor, jack hammered the concrete slab underneath, and replaced 50 feet of sewer pipe that connected his condo to the main sewer line.

Owner Billed. Because the damaged line exclusively serviced Jennison's condo, the association deemed it exclusive use common area. As provided for in the Davis-Stirling Act, HOAs are responsible for repairs to common areas while homeowners are responsible for their units and exclusive use common areas appurtenant to their units. Civil Code §1364(a). Accordingly, the association billed Jennison for the $15,000 it spent repairing the line. Jennison refused to pay and the Association sued.

Court Review. The court examined Civil Code 1364(a), which states that owners are responsible for exclusive use common areas "unless otherwise provided in the declaration." Because the statute defers to an association's CC&Rs, the court turned to the Dover Village governing documents. It found that the CC&Rs were silent as to maintenance duties involving exclusive use sewer lines. The CC&Rs did, however, specifically designate patios and garages as exclusive use common areas to be maintained by owners. By expressly assigning maintenance duties for these exclusive use areas, the court concluded that all other exclusive use areas were the responsibility of the Association. Accordingly, the court found for Jennison and against Dover Village. Dover Village v. Jennison.

RECOMMENDATION: Most associations have outdated governing documents when it comes to maintenance duties. To avoid costly litigation, associations should update their documents to clearly define maintenance responsibilities. Some associations make the HOA responsible for all maintenance. This usually results in higher monthly dues and occasional special assessments but spreads the cost across all owners. Other associations prefer to keep dues as low as possible and make individual owners responsible for their maintenance expenses as if they lived in a single family home. Both are legitimate policies but whichever one is selected must be clearly defined in the CC&Rs.