Liability for Balcony Damage
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LIABILITY FOR BALCONY DAMAGE

QUESTION: One of the homeowners put huge potted plants on his balcony. If water eventually weakens the balcony, who is responsible for repairing it?

ANSWER
: The structural elements of the balcony are almost always the responsibility of the association to maintain. The only exception I've seen is when the balcony is added to the building by the unit owner (with the association's permission). When that happens, we require the owner to sign a recordable covenant that makes him/her responsible for the repair and maintenance of the balcony structure.

Balcony Surface.
When it comes to the balcony surface, your governing documents control (assuming they address the issue). If the association is responsible for waterproofing the surface, then the board should make sure it keeps everything waterproofed. More often than not, governing documents are unclear or silent on the issue of deck maintenance. In that case, the Davis-Stirling Act resolves the ambiguity by stating that "Unless otherwise provided in the [CC&Rs] . . . the owner of each separate interest is responsible for maintaining . . . any exclusive use common area appurtenant to the separate interest. (Civ. Code §4775.) That means owners are responsible for maintaining their balcony's waterproofing surface (which is the norm for most associations).

Negligent Maintenance.
If an owner tiles the balcony deck or fails to properly maintain the waterproofing and this leads to damage of the balcony's structure, the association could hold the owner responsible for the damage. Normally, there are provisions in the CC&Rs that allow associations to charge an owner for the cost of repairing damage caused by their negligence. If the CC&Rs are silent, the Davis-Stirling Act allows boards to impose reimbursement special assessments in the form of a monetary charge and to collect it through lien and foreclosure (provided the authority to impose a lien is in the governing documents). (Civ. Code §5725.)

Recommendation. Boards should adopt reasonable rules restricting planters and other activities that can damage balconies.

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

Adams Stirling PLC