Maintenance Defined
Generally, maintaining something means preserving it in its original condition to prolong its life. A fundamental duty of a board is to maintain and repair the common areas. Collecting sufficient assessments to carry out that duty is required by statute. (Civ. Code § 5600)
Duty to Inspect and Investigate
Duty to Inspect. In a 2019 case called "Sands v. Walnut Gardens," the plaintiffs sued the association for a roof pipe that broke, causing water damage to their bedroom. The trial court granted a nonsuit in favor of the association. The appellate court reversed. The CC&Rs required the association to keep the project in a “first-class condition.” Witnesses testified that the association failed to perform preventative maintenance and that the roof pipes had not been inspected or maintained in years. To maintain the common areas, associations must conduct regular inspections. There are three kinds of inspections:
- General Maintenance. Maintenance is usually conducted by a building engineer or vendor to check the condition of the common areas. It includes lighting, landscaping, sidewalks, pools, pumps, stairwells, etc.
- Reserve Study. As part of its reserve study requirements, the Davis-Stirling Act requires all associations to conduct a diligent visual inspection of their major common area components every three years. (Civ. Code § 5550(a))
- Elevated Structures. Beginning January 1, 2020, condominium associations with buildings with three or more units must inspect elevated load-bearing structures that are supported substantially by wood. (Civ. Code § 5551(l))
- Building Envelope. This inspection focuses on water intrusion issues involving roofs, windows, and exterior walls.
Duty to Investigate. Whenever boards learn of common area problems, such as cracked sidewalks, roof leaks, or plumbing backups, they must investigate. (Corp. Code § 7231(a)) They don't need to inspect them personally; they can rely on managing agents, plumbers, etc., to investigate and report back to the board. If an owner reports a flood inside his/her unit, the board must determine if the leak is originating from (i) the owner's plumbing, which is the owner's responsibility to repair, or (ii) the common area, which is the association's responsibility to repair. (Civ. Code § 4775)
HOA Maintenance Duties
Unless the governing documents of a common interest development state otherwise, associations must maintain, repair, and replace the association's common areas. (Civ. Code § 4775) The maintenance obligation includes maintaining the common areas in a reasonably safe condition. (Ritter & Ritter v. Churchill Condominium Ass'n (2008) 166 Cal.App.4th 103, 119)
Duty to Maintain. Maintaining property generally refers to keeping it in good condition or preserving its value. It can involve regular maintenance tasks like cleaning gutters, replacing air filters, repainting, and repairing leaks. It may be more expensive to include repairs, renovations, and replacing roofs, plumbing, electrical systems, etc. Property maintenance is important because it can help prevent small problems from becoming larger, more expensive ones.
Duty to Repair. To "repair" something means to restore it to its original state when it has been damaged, broken, or malfunctioning. To repair something is to make it usable or functional again, rather than discarding it or replacing it entirely. A fundamental duty of a board is to maintain and repair the common areas, regardless of who caused the damage. For example, if a leak is an owner's responsibility and he/she refuses to repair it (such as a shower pan leak), the board has three options: (i) initiate fine the owner and suspend privileges until the owner repairs the leak, (ii) repair the leak (if the board can get access) and then bill the owner for reimbursement, or (iii) go into court for an order that the owner either repair the leak or step aside and allow the association to repair it. The severity of the leak will determine the steps taken. When and how the damage is repaired may depend on whether the matter is turned over to the insurance company.
Duty to Replace. Associations have a duty to replace common area elements when they can no longer be repaired. To that end, associations must conduct reserve studies and set aside monies for future replacement of roofs, elevators, plumbing systems, windows, etc. Associations must visually inspect the common areas every 3 years and prepare a list of all major components, their remaining useful life, and the cost to repair or replace them. (Civ. Code § 5550) Regarding reserve studies, this does not mean that board members must personally inspect the common areas; they can hire an agent to inspect on their behalf.
Duty to Use Licensed Vendors. Boards must use licensed and insured vendors to maintain and repair the common areas.
Duty to Assess. Boards must levy assessments sufficient to fulfill their duty to maintain and repair the common areas. To fund large maintenance projects when reserves are insufficient, see Special Assessments.
First-Class Maintenance.
Some CC&Rs require the common areas to be kept in a "first-class condition." This term is problematic. "First-class" can be subjective and legally vague. The requirement jeopardizes the association if it is sued over maintenance issues. When an association's CC&Rs are amended, this term should be changed to a more defensible term, such as "maintained in a safe and functional condition." This aligns with the board’s fiduciary duties and community expectations without setting an unrealistic or overly expensive maintenance standard. It also aligns with reserve study timelines.
Judicial Deference to Maintenance Decisions
Courts will defer to boards' decisions on when and how the common areas are maintained, provided the decisions are reasonable, in the best interests of the association, and not arbitrary. The judicial deference doctrine will not shield an association from liability for ignoring problems; instead, it protects a board’s good-faith decisions to maintain and repair common areas. (Affan v. Portofino Cove)
- The judicial deference rule applies to an association board’s discretionary decisions concerning the operation of the common interest development. (Eith v. Ketelhut (2018))
- Judicial deference applies to decisions involving the board's authority to maintain, control, and manage the common areas, including its designated storage space within those areas. (Harvey v. Landing (2008))
- An association's actions must be undertaken in good faith, considering the best interests of the community association and its members and seeking professional advice where necessary (Berryman v. Merit (2007))
- So long as a homeowners’ association acts upon reasonable investigation, in good faith, and in a manner the association reasonably believes to be in the best interests of the association and its members, its decision will be upheld. (Lamden v. La Jolla Shores (1999))
- Generally, courts will uphold decisions made by the governing board of an owners' association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development's governing documents, and comply with public policy. (Nahrstedt v. Lakeside Village (1994))
Burden of Proof. The burden of proof is on an objecting homeowner to show that an association’s decision is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction's benefits to the development's residents, or violates a fundamental public policy." (Nahrstedt, 8 Cal.4th at 361, 386; Cohen, 142 Cal.App.3d at 642, 651-654) In this regard, "courts do not conduct a case-by-case analysis of the restrictions to determine the effect on an individual homeowner; [instead they] consider the reasonableness of the restrictions by looking at the goals and concerns of the entire development." (Dolan-King, 81 Cal.App.4th at 965, 975)
Types of Maintenance
Preventive (or Preventative) Maintenance. Preventive maintenance is routine and planned for. The cost of materials and labor is budgeted and expected.
- Regular or Common Maintenance. Examples of common preventive maintenance include (i) cleaning hallways, (ii) mowing lawns, (iii) treating pool chemicals, and (iv) lubricating gate and door hardware.
- Planned Maintenance. Planned maintenance is performed while the equipment is still in operation to reduce the likelihood of failure. It extends the life of equipment and structures. It involves regular inspections and, sometimes, early replacement of components to ensure the equipment operates smoothly. Examples include things such as (i) annual inspection of roofs and applying sealants as needed, (ii) cleaning roof gutters, (iii) caulking windows before leaks occur, (iv) changing filters, and (v) touching up paint.
Corrective Maintenance. The main difference between corrective and preventive maintenance is that corrective maintenance is performed after a failure, while preventive maintenance is performed before a failure occurs. Corrective maintenance is reactive, while preventive maintenance is proactive.
- Scheduled Corrective Maintenance. Examples include (i) changing burned-out lightbulbs, (ii) replacing sidewalks buckled by tree roots, (iii) removing graffiti, (iv) repairing broken water lines, (v) repairing boilers, and (vi) repairing roof leaks.
- Emergency Corrective Maintenance. Emergency maintenance is unexpected. More often than not, it involves water damage from a burst pipe, unanticipated roof leaks, or a slope failure. Emergency maintenance may also require an emergency special assessment to fund the repairs.
Deferred Maintenance. Postponing maintenance that needs to be done. Deferring needed maintenance can lead to premature failures, creating health and safety issues.
- Proper Delays. Planned short delays in maintenance to (i) raise funds for making repairs or (ii) stagger repairs for scheduling purposes are acceptable business practices. Even so, boards must protect members from any damage caused by such delays.
- Improper Deferrals. Deferring maintenance for the wrong reasons can be a breach of the board's fiduciary duties. Deferring maintenance to avoid spending money or raising dues is harmful to the membership because it (i) exposes the association to litigation and potential liability for damage caused by the deferrals, (ii) lowers property values, and (iii) increases the cost of the eventual repairs (which can result in substantial special assessments). In addition, it may expose directors to claims of gross negligence, breach of CC&Rs, breach of statute (Civ. Code § 4775), and breach of fiduciary duties. Under those conditions, the business judgment rule will probably not protect the directors from personal liability. (See Champlain Towers)
HOA Maintenance Manuals
To assist associations with the maintenance of common area components, boards should prepare a maintenance manual. Maintenance manuals address preventive maintenance by photographing and listing each component, and providing information on when to inspect them and what work is suggested or required by Industry Standards or Product Manufacturers to extend the item's life. It also provides consistency in the maintenance program from board to board and management companies. Some companies, such as ProTec Building Services, specialize in preparing association maintenance manuals. Following are sample manuals:
Exclusive Use Area Maintenance
HOA Responsible for Plumbing. Association documents routinely assign maintenance duties between owners and the association. Unfortunately, exclusive use common areas are often overlooked or unclear about who is responsible for maintaining, repairing, and replacing them. In Dover Village v. Jennison, the court examined Civil Code § 1364(a) (now Civil Code § 4775(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 on maintenance duties for 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 ruled in favor of Jennison and against Dover Village.
Davis-Stirling Act. Governing documents throughout California were routinely drafted, making owners responsible for the "maintenance" of exclusive-use common areas without addressing repairs and replacement. Effective January 1, 2017, Civil Code § 4775(a)(3) imposes on associations the responsibility to repair and replace exclusive use common areas unless the governing document states otherwise. Homeowners remain responsible for maintaining their exclusive use areas. Unfortunately, the statute does not define what it means by "maintain."
Recommendation: To avoid legal disputes, associations need to clearly define an owner's maintenance duties for balconies, decks, patios, fences, roofs, plumbing, and other exclusive use common area items. Each association will need to decide 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 be updated to include more detail. Some associations will need to amend their CC&Rs.
Planned Developments
Unless the CC&Rs provide otherwise, associations are responsible for repairing, replacing, or maintaining the common areas. Owners are responsible for maintaining their separate interests and any exclusive use common areas appurtenant to their separate interests (Civ. Code § 4775(a)), which means a separately owned lot, parcel, area, or space. (Civ. Code § 4185) "Separate Interest".) In most planned developments, depending on the CC&Rs, maintenance responsibilities are generally allocated as follows:
- Owner Entirely Responsible. In planned developments where the homes are single-family residences, owners are responsible for maintaining all aspects of their house and lot unless the CC&Rs provide otherwise.
- Shared Responsibilities. In some documents, roof maintenance and exterior painting are assigned to the association. All other aspects of repairs and maintenance are the owner's responsibility. This is especially true when the homes are constructed in "pods" or "clusters" with shared walls.
When owners fail to maintain their property, the association can enforce maintenance standards set forth in the governing documents.
Condominium Maintenance Responsibilities
In a condominium development, the definitions of separate interests, common areas, and exclusive-use common areas are especially important because maintenance responsibilities can vary across these areas. Unless CC&Rs provide otherwise, the association is responsible for repairing, replacing, or maintaining the common area other than the 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. (Civ. Code § 4775(a)) Common Area is defined as the entire common interest development, excluding the separate interests therein. (Civ. Code § 4095(a)) A condominium's "separate interest" is the air space bounded by the interior unfinished surfaces of the perimeter walls, floors, ceilings, windows, and doors. (Civ. Code § 4185(b)) In interpreting deeds, the existing physical boundaries of a unit are conclusively presumed to be its boundaries rather than the metes and bounds expressed in the deed or condominium plan. (Civ. Code § 4220)
Heating, ventilation, and air conditioning (HVAC)
Heating, ventilation, and air conditioning (HVAC) equipment is a "fixture" because it is attached to and improves real property. The equipment is often located outside the boundaries of a condominium's airspace. It is often placed on the common area roof for the "exclusive use" of a particular unit. The association's governing documents will determine the repair and maintenance of HVAC equipment and ducting.
Fixtures and Improvements
Improvements. Everything inside that airspace, including light fixtures, light switches and outlets, carpet, hardwood floors, paint and wallpaper, toilets, tubs, showers, sinks, appliances, cabinets, countertops, etc., is an improvement to the unit owned by the homeowner. Unless the governing document states otherwise, members are responsible for insuring, repairing, and replacing improvements in their units.
Plumbing Fixtures. Plumbing fixtures are appliances generally located in the airspace of a condominium that are improvements to and a part of the real property airspace owned by a homeowner. Examples are toilets, faucets, sinks, tubs, and showers. Normally, all CC&Rs assign maintenance duties for plumbing fixtures to the homeowner. Plumbing lines in the walls are not fixtures—they will either be common area or exclusive use common area lines.
Electrical Fixtures. Like plumbing fixtures, electrical fixtures are improvements to the condominium air space owned by the unit owner. Unless the governing documents state otherwise, the homeowner is responsible for repairing, maintaining, and replacing electrical fixtures. Examples of electrical fixtures include light switches, outlets, bathroom ventilation fans, ceiling lights, and ceiling fans. Electrical lines in the walls will either be common area or exclusive use common area, depending on their usage.
Cabinets & Counters. Cabinets and counters are real property improvements to the airspace owned by the condominium unit owner. As such, it is the unit owner's duty to repair and maintain them. The homeowner's insurance generally covers the loss if the unit suffers water or fire damage. If the loss was caused by the negligence of a neighboring unit owner or the association, claims may be made against the negligent party.
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