Association documents routinely assign maintenance duties between owners and the association. Unfortunately, exclusive use common areas are often left out or muddled. For example, in condominium developments, older CC&Rs are vague or silent when it comes to balcony.
Old Default Provision. To resolve the problem, the Davis-Stirling Act created a default provision that assigned exclusive use maintenance to owners. The Act did not define "maintenance" but everyone understood it to include repairs since most dictionaries define it as such.
New Default Provision. Starting January 1, 2017 a new default provision went into effect. Unless an association's CC&Rs state otherwise, owners continue to be responsible for maintaining their exclusive use areas but the association will be responsible for repairing and replacing them. (Civ. Code §4775(a)(3).)
Confusing. By separating repairs from maintenance, the legislature created a problem. Governing documents were routinely drafted making owners responsible for "maintenance" without addressing repairs and replacement since they were understood. What does "maintenance" mean? Does maintenance mean sweeping a balcony deck? Or does it mean applying a seal coat to extend the life of the decking material? The answer is important because if owners fail to maintain their balcony decks, the association must repair or replace them. When that happens, the owner can be required to pay for the repair since he failed to maintain his deck.
Recommendation: To avoid legal wrangles, associations need to adopt maintenance guidelines and clearly define an owner's duties for balconies decks. Each association will need to decide for itself whether it wants to maintain deck coatings or assign that task to owners--and if so, what does that mean? Associations should create maintenance charts with clearly defined duties. Those with existing charts will need to update them to include more detail. Some associations will need to amend their CC&Rs.
ASSISTANCE. If you need assistance preparing rules or amending your CC&Rs, contact us for a quote. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.