QUESTION: If a new set of CC&Rs transfers maintenance responsibility and repair costs from the association to the owners, would it be legal?
ANSWER: Yes, it would be legal. Maintenance duties do not automatically follow ownership and can be reassigned by the membership via the governing documents.
Condominiums. In condominiums, members own air space plus an undivided percentage interest in the common areas. Even though all plumbing and wiring in the walls are owned in common, maintenance of these exclusive use common areas is typically assigned to unit owners. (Civ. Code §4775(a).)
Planned Developments. In planned developments (PDs) with townhouse construction, members own their individual structures from the roof to the foundation and to the center of the party wall separating it from the next unit. Nonetheless, maintenance of the roof and exterior walls is typically assigned to the association even though it has no ownership interest in the structure. Assigning maintenance to the HOA should ensure timely and proper roof repairs (via reserve funds) and uniform paint colors on exterior walls.
Benefits the Whole. The California Supreme Court determined that "anyone who buys a unit in a common interest development with knowledge of its owners association's discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual." The Court concluded that "the reasonableness . . . of a condominium use restriction . . . is to be determined not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole." (Nahrstedt v. Lakeside Village.)
Recommendation: HOAs can and should amend their documents to assign or reassign maintenance duties in a manner that makes sense for their particular development. Since most CC&Rs are vague when it comes to maintenance, clearly defining those duties is one of the main benefits of a restatement of an association's governing documents. Doing so eliminates ambiguities that frequently lead to costly litigation.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.