By statute (Civ. Code §4775) unless the governing documents of a common interest development state otherwise, associations must maintain, repair and replace the common areas. Operating through their boards of directors, associations have the following duties:
Duty to Inspect Common Areas. Associations must visually inspect the common areas every three years and prepare a reserve study listing 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 have an agent inspect on their behalf.
Duty to Investigate Complaints. 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.) Exclusive use common areas will depend on the association's governing documents.
Duty to Repair. Regardless of fault, damaged common areas must be repaired. If the leak is an owner's responsibility and he/she refuses to repair the leak (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 Assess. Boards have a duty to levy assessments sufficient to fulfill their duty to maintain and repair the common areas.
Membership Input. While boards may consider member input, it is the board not the membership that has the legal authority to make maintenance decisions related to the common areas. There are many reasons why members do not legally vote on common area repair decisions. Members are not fiduciaries to one another or to the association, so they are free to vote in their own self-interest without regard to the community. They may ignore expert recommendations in favor of subjective biases or beliefs, or ignore costs or harm to others in favor of their own interests. Because they are not fiduciaries (and because their votes are secret), they have no collective or individual responsibility for their votes, and no personal liability for damages arising from joint ownership of the common areas so long as the association maintains the insurance required by Civil Code §5805.
Moreover, many communities have great practical difficulty in obtaining membership votes (or even meeting quorum), so members cannot necessarily make decisions reliably or timely. Accordingly, outside of certain issues such as approving assessments and (in some cases) loans or capital improvements, the members cannot generally decide whether or how to perform common area repairs. However, members may from time to time have important decisions to make related to maintenance projects. If reserve funding is not sufficient to cover the cost, members must decide whether to approve an assessment or (in some cases) construction loans to fund the project.
Method of Repair. The courts will generally defer to the board of directors on the method of repair selected by the board. This is known as "Judicial Deference."
Exclusive Use Common Area. See "Exclusive Use Maintenance."
Recommendation: Associations should work with legal counsel to develop maintenance charts that clearly describe the respective maintenance duties of owners and the association.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.