HOA Law Blog
By David Swedelson, Partner and Community Association Attorney at SwedelsonGottlieb
Since the inception of the Davis-Stirling Act in 1985, there has been confusion regarding owner vs. association responsibility for the repair or replacement of exclusive use common area. AB 968, legislation sponsored by the Educational Community for Homeowners (ECHO), signed into law by the Governor on September 18, 2014, brings us long-needed clarification. We strongly supported this legislation (surprisingly, as will be explained below, many others did not), as it clears up some of the ambiguities created by what was formerly Civil Code Section 1364, now Civil Code Section 4775.
Civil Code Section 4775 currently states that unless otherwise provided in the CC&Rs, a community association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area. The homeowner of each separate interest is responsible for maintaining their separate interest (their unit or home) and any exclusive use appurtenant (attached or next to) their separate interest.
So, while Civil Code Section 4775 has addressed who is responsible for the maintenance, repair, and replacement of the common area, this code section only dealt with the responsibility for maintenance of the exclusive use common area, or so that is how many interpreted the code section.
What many board members and homeowners failed to realize is that exclusive use common area is really nothing more than common area which an owner has the exclusive right to use. So it should have been clear that because it is common area, it is still the Association’s obligation to repair and/or replace. Typically, exclusive use common area is defined in an association’s governing documents as patios, balconies and/or parking spaces. If you question this, you need to read my article on the Dover Village Association vs. Jennison case that I wrote about in April of 2013 where I referenced this legislation (although at the time it had a different assembly bill reference); follow this link.
Although some associations’ governing documents do have a more expansive definition of exclusive use common area that includes certain other elements of the common area that service only that unit, most do not. Each association has to refer to its own CC&Rs and, as applicable, the condominium plan, to determine what is or is not exclusive use common area. Boards should consider discussing this issue with legal counsel.
This new legislation will address, once and for all, who is responsible for repairing and/or replacing the exclusive use common area. Here is the text of the old and new Civil Code Section 4775:
[The following is current and effective until January 1, 2017]
4775. (a) Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.
(b) The costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.
(c) This section shall be repealed on January 1, 2017.
[The following will be effective January 1, 2017.]
4775. (a) (1) Except as provided in paragraph (3), unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area.
(2) Unless otherwise provided in the declaration of a common interest development, the owner of each separate interest is responsible for repairing, replacing, and maintaining that separate interest.
(3) Unless otherwise provided in the declaration of a common interest development, the owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest and the association is responsible for repairing and replacing the exclusive use common area.
(b) The costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.
(c) This section shall become operative on January 1, 2017.
This new legislation will certainly help eliminate a lot of disputes. Many associations have misinterpreted Civil Code Section 4775 when the CC&Rs are silent on this issue and incorrectly assigned responsibility for repair and replacement of exclusive use common area to the individual owner. This new code section clearly indicates that that is not the correct approach.
To help explain the legislature’s reasoning for this new law, the following comes from the Legislative Council’s Digest:
AB 968, Gordon. Common interest developments: common areas: maintenance and repairs.
The Davis-Stirling Common Interest Development Act governs the management and operation of common interest developments. These provisions require that a common interest development be managed by an association and also set forth the duties and responsibilities of the association and the owners of the separate interests with regard to maintenance and repair of common and exclusive use areas, as defined. Unless otherwise provided in the common interest development declaration, the association is responsible for maintaining, repairing, or replacing the common area, other than the exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the interest.
This bill would, beginning January 1, 2017, instead provide that, unless otherwise provided in the declaration, the association is responsible for maintaining, repairing, and replacing the common area, the owner of each separate interest is responsible for maintaining, repairing, and replacing the separate interest, and the owner of the separate interest is responsible for maintaining the exclusive use common area appurtenant to the separate interest while the association is responsible for repairing and replacing the exclusive use common area.
While this new legislation clears up ambiguities in the Civil Code, there are many managers, board members and even attorneys who have come up with their own interpretations as to who is responsible for exclusive use common area and have assigned same to the homeowners. They were not happy to see this new legislation, which would create more obligations for the associations they represent or manage. I know this, as I was involved in some group discussions regarding this legislation that many did not want to see adopted. But as I said above, their interpretation of the Civil Code and/or what is or is not exclusive use common area is flawed. The clarification of maintenance and repair responsibilities made by the amendments to Civil Code Section 4775 is consistent with the position currently taken by most (but surprisingly not all) attorneys who practice in this area.
And because there are some associations that have assigned repair and replacement responsibility of exclusive use common area to the owners (without provision for same in the declaration), the legislature did agree to delay enactment of the changes to Civil Code Section 4775 until January of 2017. That two-year period of time is to allow these associations to get themselves and their owners ready for this change.
If you are interested in more information regarding this new important legislation, please follow this link to ECHO’s website, which addresses AB 968, which ECHO sponsored.
We congratulate ECHO on taking the lead in sponsoring this important legislation, which will clarify and hopefully eliminate disputes over responsibility for the repair and replacement of exclusive common area. It was a long time in coming.
We believe that the change of Civil Code Section 4775 that goes into effect in 2017 is really just a clarification of existing law. If your community association has issues with who is responsible for exclusive use common area or what is exclusive use common area based on your CC&Rs, we suggest that you contact legal counsel.
David Swedelson is a condo lawyer and HOA attorney at SwedelsonGottlieb. David limits his practice to the representation of California Community Associations. David knows a thing or two about exclusive use common area. He can be contacted via email: dcs@sghoalaw.com