QUESTION: Can a board add, change, or make up rules not in the CC&Rs? Our board decided that all condos with wood/gas-burning fireplaces can ONLY use gas. I bought a condo with a wood fireplace, and it was important to me. I do not like that they arbitrarily made this decision without homeowners' input. In addition, the first offense will cost $1,000, and the second offense will cost $2,000. Can they do this?
ANSWER: If you review your governing documents, you will find language authorizing your association to adopt rules. In addition, you will likely find broad language authorizing it to address health and safety issues. As with everything one might enjoy, fireplaces and stoves are now heavily regulated throughout California. The reasons involve health and safety.
Fireplace Fire Safety
Wood-burning fireplaces can produce large amounts of soot and creosote, which coat the interior of a chimney. The buildup can create dangerous chimney fires. In addition, the chimney vents hot gases, soot, and embers from the fireplace. Over time, the inside of the chimney is coated with soot, which can lead to chimney fires. According to the National Fire Protection Association, there are 26,000 residential chimney fires each year. In addition, bird nests or other obstructions in chimneys can lead to carbon monoxide poisoning when gases are forced into units. Associations should inspect and clean all common area chimneys regularly. Depending on the type of materials burned in fireplaces and their frequency of usage, chimneys could need cleaning every year.
Fireplace Pollution
In addition to fire safety, there is the pollution problem. In most areas of the country, wood-burning stoves and fireplaces are the largest source of pollution generated by residences. In some areas, they create 80% of airborne particulates during the winter. According to the Environmental Protection Agency (EPA), "The fine particles in smoke...can get deep into the lungs, harming the lungs, blood vessels and heart. People with heart, vascular or lung disease, older adults, and children are the most at risk." To address this problem, the EPA issued new regulations in 2015 restricting wood-burning devices.
Most counties in California now regulate or ban wood-burning fireplaces and stoves in all new construction. For example, beginning November 1, 2016, wood-burning devices are banned in all new construction in seven San Francisco Bay Area counties. Nine counties in the San Joaquin Valley not only limit them in new construction but also require all existing wood stoves to be replaced with an EPA-certified wood stove when a home is sold.
Maintenance Responsibility
Determining responsibility for the maintenance of fireplaces in condominium associations can be challenging. Older CC&Rs are generally silent about fireplace maintenance, repairs, and replacement. There is a difference of opinion in the legal community. Some believe the fireplace falls outside the unit's boundaries and is entirely the association's responsibility. That includes the chimney, flue, and firebox. There is a contrary opinion that makes the fireplace box part of the unit and the responsibility of the unit owner, especially since only the owner receives a benefit from the fireplace, and if something were to go wrong with the fireplace, it would likely be due to the owner's actions.
In addition, if the CC&Rs make the owner responsible for mechanical equipment servicing their unit, this includes the fireplace. Many municipal codes define mechanical systems as anything that provides heating to a unit. For example, Section 103 of the LA County Mechanical Code entitled “Scope” states, “The provisions of this Code shall apply to the erection, installation, alteration, repair, relocation, replacement, addition to, use, or maintenance of any heating, ventilating, cooling, refrigeration systems, incinerators or other miscellaneous heat-producing appliances.”
Boards Can Adopt Reasonable Rules
Is it reasonable for a board to require owners to switch to gas? As provided in Civil Code § 4350, to be enforceable, rules must:
1. Be in writing.
2. Be within the board's authority conferred by law or CC&Rs, articles, or bylaws.
3. Not in conflict with the law or governing documents.
4. Have been adopted, amended, or repealed in good faith.
5. Be reasonable.
A judge would likely find the gas-only rule meets the above criteria since state and federal regulations already restrict wood-burning stoves and fireplaces.
Barbecues. See safety issues related to "Propane Barbecues."
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