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COMMON AREA MAINTENANCE

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 Assn. (2008) 166 Cal.App.4th 103, 119.)

  1. Duty to Maintain. Maintaining property generally refers to the process of keeping a property in good condition or preserving its value. Maintaining a property can involve regular maintenance tasks like cleaning gutters, replacing air filters, repainting, and repairing leaks. It may be more expansive 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.
  2. Duty to Repair. To "repair" something means to restore it to its original state when it has been damaged, broken, or malfunctioning. The goal of repair is to make something 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 damaged them. 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 daily fines 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 insurance.
  3. Duty to Replace. Associations have a duty to replace common area elements when they can no longer be repaired. To that end, associations are required to 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 three years and prepare a list of all major components, the remaining useful life of those components, and the cost to repair or replace them. (Civ. Code § 5550.) When it comes to reserve studies, this does not mean that board members must personally inspect the common areas; they can hire an agent inspect on their behalf.
  4. Duty to Inspect. In a 2019 case called "Sands v. Walnut Gardens," plaintiffs sued the association for a pipe on the roof 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 the association failed to perform preventative maintenance and roof pipes had not been inspected or maintained in years. For proper maintenance of the common areas, associations must conduct regular inspections. There are three kinds of inspections:
    1. General Maintenance. These usually conducted by a building engineer or vendor to check the condition of the common areas. It includes things like: lighting, landscaping, sidewalks, pools, pumps, hallways and stairwells, etc. 
    2. Reserve Study. As part of its reserve study requirements, the Davis-Stirling Act requires all associations to conduct a diligent visual inspection of its major common area components every three years. (Civ. Code § 5550(a).)
    3. Elevated Structures. Beginning January 1, 2020, condominium associations with buildings with three or more units must inspect elevated load-bearing structures which are supported substantially by wood. (Civ. Code § 5551(l).) 
    4. Building Envelope. This inspection focuses on water intrusion issues involving roofs, windows, and exterior walls.
  5. Duty to Investigate. Whenever boards learn of common area problems, such as cracked sidewalks, roof leaks, plumbing backups, etc., they must investigate the problems. (Corp. Code § 7231(a).) They don't need to personally inspect them, 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 own 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.) 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.)
  6. Duty to Use Licensed Vendors. Boards have a duty to use licensed and insured vendors to maintain and repair the common areas. 
  7. Duty to Assess. Boards have a duty to 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.

TYPES OF MAINTENANCE
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.) Following are four types of maintenance:

1.   Preventive (or Preventative) Maintenance. Preventive maintenance is routine and planned for. The cost of materials and labor are budgeted and expected.

A.   Regular or Common Maintenance. Examples of common preventive maintenance include: (i) cleaning hallways, (ii) mowing lawns, (iii) treating pool chemicals, and (iv)lubricating gate an door hardware

B.   Planned Maintenance. This is maintenance that is performed while equipment is still working so as to reduce the likelihood of its failing. It extends the life of equipment and structures. It involves regular inspections and sometimes early replacement of components to ensure the smooth operation of the equipment. Examples include things such as: (i) annual inspection of roofs and the applying sealants as-needed, (ii) cleaning roof gutters, (iii) caulking windows before leaks occur, (iv) changing filters, and (v) touching up paint

2. Corrective Maintenance. The main difference between corrective maintenance and preventive maintenance is that corrective maintenance is performed after a failure has occurred, while preventive maintenance is performed before a failure occurs. Corrective maintenance is reactive, while preventive maintenance is proactive.

A.  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.

B.  Emergency Corrective Maintenance. Emergency maintenance is unexpected. More often than not, it involves water damage from a burst pipe, or unanticipated roof leaks, or a slope failure. Emergency maintenance may also require an emergency special assessment to fund the repairs. 

3.  Deferred Maintenance. Postponing maintenance that needs to be done. Deferring needed maintenance can lead to premature failures and create health and safety issues.

A.  Proper Delays. Planned short delays in maintenance to (i) raise funds for making repairs or (ii) staggering repairs for scheduling purposes are acceptable business practices. Even so, boards must take care to protect members from any damage that might be caused by such delays.

B.  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 huge 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.)

Maintenance Manuals. To assist associations with proper maintenance of common area components, boards should prepare a maintenance manual. This is different from a reserve study which projects the remaining useful life of common area components and the projected cost to replace each one. A maintenance manual addresses preventive maintenance issues by photographing and listing each component and providing information about when to inspect them, what work is suggested or required by Industry Standard or Product Manufacturers to extend the life of the item. It also provides consistenency in the maintenance program from board to board and management company to management company. There are companies, such as ProTec Building Services, that specialize in the preparation of association maintenance manuals. Following are sample manuals:

EXCLUSIVE USE AREAS MAINTENANCE
Association documents routinely assign maintenance duties between owners and the association. Unfortunately, exclusive use common areas are often left out or muddled when it comes to who is responsible to maintain, repair, and replace them.

CC&R Enumerates. 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 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. 

Davis-Stirling Act. Governing documents throughout California were routinely drafted making owners responsible for "maintenance" of exclusive use common areas without addressing repairs and replacement. Starting January 1, 2017 Civil Code § 4775(a)(3) makes associations responsible for repairing and replacing exclusive use common areas unless the governing document state otherwise. Homeowners continue to be responsible for maintaining their exclusive use areas. Unfortunately, the statute does not define what it means by "maintain."

Maintenance Defined. Generically, maintaining something means to preserve it in its original condition so as to prolong its life.

Recommendation: To avoid legal wrangles, 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 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: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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