Maintenance Defined
Generically, 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 Investigate Complaints and Inspect Common Areas
Duty to Investigate. Whenever boards learn of common area problems, such as cracked sidewalks, roof leaks, plumbing backups, etc., they must investigate them. (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.) 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.)
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 that 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:
- General Maintenance. Maintenance is usually conducted by a building engineer or vendor to check the condition of the common areas. It includes things such as lighting, landscaping, sidewalks, pools, pumps, and stairwells.
- 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).)
- 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.
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.)
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 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.
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 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.
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 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.) 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.
Types of Maintenance
Preventive (or Preventative) Maintenance. Preventive maintenance is routine and planned for. The cost of materials and labor are 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 equipment is still working 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 smooth operation of the equipment. 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) staggering 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 maintenance of common area components, boards should prepare a maintenance manual. Maintenance manuals address preventive maintenance issues by photographing and listing each component and providing information about when to inspect them and what work is suggested or required by Industry Standards or Product Manufacturers to extend the life of the item. It also provides consistency in the maintenance program from board to board and management company to management company. Some companies, such as ProTec Building Services, specialize in preparing association maintenance manuals. Following are sample manuals:
Exclusive Use Area Maintenance
Association documents routinely assign maintenance duties between owners and the association. Unfortunately, exclusive use common areas are often left out or muddled regarding 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 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 the "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 states otherwise. Homeowners continue to be 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, maintenance of the roofs and painting of the exteriors is assigned to the association. All other aspects of repairs and maintenance are assigned to the owner. 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 as provided for 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 for each of 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 except for the separate interests in the development. (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.)
Maintenance of Fixtures and Improvements
Improvements. Everything inside that air space, 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 air space of a condominium that are improvements to and a part of the real property air space 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, electrical fixtures are the duty of the homeowner to repair, maintain, and replace. Examples of electrical fixtures are light switches, outlets, bathroom ventilation fans, ceiling lights, ceiling fans, etc. Electrical lines in the walls are not fixtures—the wiring will either be common area or exclusive use common area, depending on its usage.
Cabinets & Counters. Cabinets and counters are real property improvements to the air space 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.
HVAC. Although heating, ventilation, and air conditioning ("HVAC") equipment are "fixtures" because they are attached to and improve real property, the equipment is often located outside the boundaries of a condominium's air space. The equipment is usually on the common area roof and deemed an "exclusive use" common area. The association's governing documents will determine the repair and maintenance of HVAC equipment and ducting.
Replacing Common Area Water Lines (Repiping)
Life of Water Lines. Water pipes in condominium projects are generally projected to last the life of the project, i.e., more than 30 years and are, therefore, not listed in most reserve studies. In reality, water lines eventually need replacement, especially if they are galvanized pipe or thin-walled copper. Eventually, pinhole leaks develop or they fail altogether, leading to floods.
Insurance. Many insurance carriers will not pay for damage from water leaks if it determines that the damage was due to the board's failure to replace the failing lines. Insurance will normally pay for sudden unexpected losses but not losses where the board knew about the problem and took no action to correct it. Other carriers will pay for the damage but by the third or fourth leak, they will cancel the policy. Once canceled, the premiums for new insurance will be significantly higher.
Partial Repairs. If boards choose to replace some lines with copper and not others, mixing copper with galvanized can lead to galvanic corrosion between the dissimilar metals which will speed the deterioration of the pipes. As a result, partial replacement of galvanized lines is not a permanent solution to the problem. Sometimes plumbing in an older building can be replaced gradually. Following is a program implemented by one association:
Because our building is 35 years old, we assume a plumbing drain problem inside a unit extends to the entire line. So instead of repairing the immediate problem, we replace the line serving the unit and the units above and below. We allocate $8,000 per year for unidentified plumbing work in the Reserve Study. We attack the problem from the outside of the building wherever possible to minimize the inconvenience of repairs inside units. This almost always requires removal and replacement of stucco, but it is no worse than cabinet, drywall, painting inside the unit. It is much easier to coordinate work on the outside which means it gets done sooner. This policy has virtually eliminated weekend plumbing emergencies. -Mike G.
Plumbing Reserves. Before deciding on a gradual replacement program, boards should consult with a qualified plumber to determine the quality of the plumbing system in their development and the projected failure rate of lines. Depending on cost and failure rates and potential damage, boards may want to replace all lines at one time rather than gradually. Boards should also consult with legal counsel on the best course of action. See "Plumbing Reserves."
Faucet Leaks Inside Units
Faucets and other plumbing fixtures located inside a condominium are the property of the unit owner and must be maintained by that owner. An average household's leaks can account for more than 10,000 gallons of water wasted every year. Common leaks are from worn toilet flappers and leaky faucets. A faucet that drips at the rate of one drip per second can waste more than 3,000 gallons per year. Because condominiums are on a master water meter, boards can hire a plumber at HOA expense to inspect all units in the complex for water leaks. If done properly, a plumber can make a complete list of leaky faucets, valves, supply lines, drains, toilets, shower heads, etc. throughout the development. The list should also include units that need water-saving devices. Arrangements can then be made to make repairs, change toilets and install water-saving devices at a discounted rate to owners if they agree to the repairs. For those who refuse, boards can hold hearings, impose fines, and send lawyer letters to persuade them to cooperate.
Recommendation: Boards should meet with plumbers, legal counsel and management to set up an inspection/repair program for all plumbing in the development along with retrofitting with low-water devices.
Shower Pan Maintenance
The standard definition of a condominium unit is airspace bounded by the unfinished surfaces of perimeter walls, ceilings and floors. Anything inside that airspace is an improvement to and becomes part of the unit. This includes paint and wallpaper on walls; carpet, tile and hardwood on floors; kitchen cabinets and countertops; lighting fixtures; and plumbing fixtures such as toilets, tubs and sinks.
A shower pan is installed on top of the unfinished floor of a unit. (See How to install a shower pan.) That means shower pans are inside the boundaries of a unit. As such, they are not common area nor exclusive use common area. Instead, shower pans are part of the unit and the responsibility of unit owners to maintain, repair and replace. (Civ. Code § 4775(a)(2).)
Recommendation: To minimize disputes and potential litigation, condominium associations should have legal counsel prepare a maintenance chart describing the respective maintenance obligations of the association and members. It helps everyone understand their duties. In addition, many associations need to amend their CC&Rs. When we restate CC&Rs we include extensive language related to maintenance obligations.
Toilet Maintenance & Repairs
Allocating responsibility for repairs continues to be a problem for many associations because most CC&Rs offer little help in resolving the problem. Some help can be found in Civil Code § 4775(a), which states that unless otherwise provided in the declaration (CC&Rs):
- ...the association is responsible for repairing, replacing, and maintaining the common area.
- ...the owner ...is responsible for repairing, replacing, and maintaining that separate interest.
- Unless otherwise provided in the declaration ...the owner ...is responsible for maintaining the exclusive use common area appurtenant to that separate interest and the association is responsible for repairing and replacing the exclusive use common area.
What is "exclusive use common area"? The illustration below will answer the question.
Unit Improvements. Plumbing fixtures, such as a toilet, are improvements to a condominium. In other words, toilets are contained within the air space of the unit, are part of the unit, and are owned by the owner of the condominium. Accordingly, the owner, not the association, is responsible for maintaining their toilets. If the float in the toilet tank gets stuck, causing the toilet to overflow and damage the common areas, the association is responsible for repairing the common areas, but the owner (or the owner's insurance company) is ultimately responsible for paying for the repairs.
Common Area. The main drain line (in green) is considered common area because it services multiple units. This is the association's responsibility to maintain. The wall and floor (in blue) are also common areas the association is responsible for maintaining. However, the finished surfaces on the walls and floors, such as paint, wallpaper, carpet, linoleum, and tile, are the owner's responsibility to maintain. If the common areas are damaged, who pays for the damage after the association repairs the common areas ultimately depends on who caused the damage.
Exclusive Use Common Area. The wax ring under the toilet and the drain line (in red) are "exclusive use common area" because they exclusively service the owner's toilet. As such, the owner is responsible (depending on your CC&Rs) for maintaining the wax ring and exclusive use drain line even though they are located in the common area. Unfortunately, many CC&Rs are silent when it comes to exclusive use common areas.
Recommendation: To avoid conflict and costly litigation, associations should amend their CC&Rs to clearly define maintenance responsibilities for their exclusive use common areas. At a bare minimum, boards should adopt maintenance policies in their Rules and Regulations.
Angle Stop Valves
"Angle stops" are shut-off valves connecting the building's water supply to a unit's kitchen and bathroom sink faucets, and toilets. Owners are responsible for repairing and replacing their own angle stop valves.
Clean, Gray, and Black Water
There are three categories of water when it comes to building maintenance: clean, gray, and black:
- Clean water is drinkable water from your faucet and shower. Clean water lines are under pressure, which means a flood can quickly cause a lot of damage. Failure to clean up the water and dry out wall cavities can lead to mold, which is expensive to remediate.
- Gray water is wastewater from sinks, washing machines, and bathtubs. It contains soap and low-level contaminants. If they become clogged, gray water floods can occur. For example, people can put potato peels, pasta, rice, etc., into garbage disposals, clogging the lines.
- Black water (also called sewage) is toilet wastewater that contains fecal matter and urine. It carries high levels of bacteria that can cause diseases such as hepatitis and dysentery. Backups can occur from items being flushed down toilets, such as diapers, sanitary pads, etc. If the clog is in a line at the bottom of a stack, the amount of sewage flowing into a unit from other units higher up in the stack can be significant.
Clean-Up. Whenever floods occur in condominiums, they invariably involve common areas and other units. Associations are obligated by the Davis-Stirling Act and their CC&Rs to maintain, repair, and replace the common areas. That means associations must move quickly to remove all water from carpets, floors, and walls and clean any contaminated areas if gray or black water is involved.
Recommendation: Whenever floods occur, immediately fix the leak and clean everything. Simultaneously notify insurance of the loss. Then, determine fault and, if appropriate, levy a reimbursement assessment to pay the insurance deductible (assuming you have a policy regarding deductibles).
Liability for Water Damage
The failure of a water line in the wall does not automatically make an association liable for water damage inside a unit. There must be negligence by the association that caused the damage. In the absence of negligence, each party is responsible for repairing their own damage. That means the association repairs the common areas, and the owner repairs any damaged cabinetry, floor coverings, and personal property. Thus, it is important to carry proper insurance by the association and by members and establish a deductible policy.
HOA's Duties. Unless the governing documents provide otherwise, the association is responsible for repairing, replacing or maintaining the common area plumbing, and owners are responsible for maintaining their separate interests and any exclusive use common areas appurtenant to their separate interests. (Civ. Code § 4775(a).)
Owner's Duties. Unless governing documents state otherwise, the plumbing lines and fixtures are normally the responsibility of unit owners to maintain:
- kitchen sink, faucet, garbage disposal, drain, supply lines and angle stops
- appliances such as dishwasher and refrigerator
- bathroom sinks, faucets, drains, supply lines and angle stops
- tubs and shower enclosures, faucets, valves, shower pans, drains & drain lines (until they connect to a main line)
- toilets, tank mechanisms, wax ring, supply lines and angle stops
- water lines in walls that serve only the unit
- drain lines in walls that serve only the unit
- water heaters that serve a single unit
Written Policies. So as to minimize litigation, boards should develop written policies for such maintenance which are compatible with the association's governing documents. The policies should then be published to the membership and made part of the rules and regulations of the association.
Right to Enter Units. Associations have the right to enter units to stop flooding and make repairs to plumbing lines, roof leaks, window leaks, and other sources of leaks.
Steps to Take Before Water Damages a Unit or Common Areas
1. Clearly define maintenance responsibilities in your rules and adopt a water damage & mold policy.
2. Adopt rules regarding angle stop valves and supply lines that:
- require that all angle stops be heavy-duty brass or stainless steel with quarter-turn ball valves and Teflon seats
- require all supply lines to be high-grade braided stainless steel
- include standards for washing machine valves and hoses, dishwasher hoses, and ice-maker lines
3. Adopt a rule regarding payment of the insurance deductible.
4. Amend CC&Rs to:
- clearly assign maintenance responsibilities
- add mitigation provisions
- require owner insurance
- address insurance deductible
- clarify who and what is covered
- add exculpatory language for simple negligence
What to Do When Water Damages a Unit or Common Areas
- Immediately fix the leak to prevent further damage. Take pictures of the damage and the cause of the damage, both of which will be valuable for determining who pays for the damage.
- Call an emergency restoration company to clean up the water. Worry about liability issues later. Dry damaged areas within 24 to 48 hours to prevent mold. Take pictures.
- Make sure the company dries out wall and ceiling cavities. Take pictures.
Steps to Take After Water Floods a Unit
Miscellaneous
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.