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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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