HOA Law Blog
A Building Component Does Not Become Common Area Just Because It Was Placed or Built On The Common Area; Homeowner Cannot Escape Maintenance Responsibility Based Upon Developer’s Mistake. Chen v. Fairmont Terrace Homeowners Association (2001) 2001 WL 1191483 (Cal.App.4 Dist.) Not Officially Published
This is a case that was handled through appeal by SwedelsonGottlieb Partner David Swedelson.
Owners will often insist that their association is responsible for maintaining or repairing a building improvement or component that would normally be their responsibility merely because of where it is located. Nathan Chen found out the hard way that where the component is located is not the criteria.
Chen owned a home in the Fairmont Terrace Homeowners Association, a planned unit development (located in Orange County, California. A wrought iron fence ran behind and along the side of Chen’s property, dividing his lot from the common area. Due to an error during construction, the fence along his side yard (which bordered a common area greenbelt) was not placed on nor did it line up with the boundary line as planned. Instead, the fence encroached upon the common area.
Chen contended that the Association must maintain the fence because it is in the common area. He claimed that the fence became part of the common area because it was located on the common area. The Association argued that had the fence been placed on the boundary line as intended, Chen would be responsible for its maintenance. The fact that an error had benefitted Chen by providing him with additional space on his lot should not relieve him of his maintenance responsibility.
The trial court ruled in the Association’s favor, also awarding it attorneys’ fees and costs. Chen appealed. The Court of Appeal affirmed the trial court’s decision.
In reaching its decision, the Court of Appeal examined California Civil Code Section 1364 and the Association’s CC&Rs to determine who was responsible for the fence’s maintenance. Civil Code § 1364 states that the Association is responsible for maintaining the common area, and the owner of a separate interest is responsible for maintenance of that separate interest and any appurtenant exclusive use common area, unless the CC&Rs provide otherwise. Chen argued that since the fence in question was undeniably in the common area, it was common area and thus the Association was responsible for maintenance pursuant to Civil Code § 1364.
However, the court considered the CC&Rs, which supported the Association’s position and specifically stated that lot owners are responsible for maintaining fences and all other improvements on their lots. Therefore, the court of appeal reasoned that had the fence been placed on the boundary line as the developer had intended, Chen would have unequivocally been responsible for its maintenance.
The appellate court next addressed whether the developer’s mistake in placing the fence on the common area relieved Chen of what would otherwise have been his maintenance responsibility. The court noted that while the CC&Rs granted Chen an easement for encroachments that occur as a result of construction errors, “the rights and obligations of owners shall not be altered in any way by such encroachments …”
Therefore, the court ruled that the CC&Rs did not support Chen’s argument. The court also held that making the Association maintain Chen’s fence would simply be unfair,
… nor do equitable considerations support such a conclusion. Due to an error, Chen has been given the exclusive use of additional space in his yard, and he apparently has no complaint about the extra square footage. To grant him the benefit of the error while relieving him of a responsibility that would otherwise be his would contradict logic, equity, and common sense.
The court upheld the award of attorneys’ fees and costs to the Association based upon Civil Code § 1354(f), which states that in any action “to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”
Most planned developments have fences and walls which are often located in places other than the actual boundary line between the lots or the common area. It is not uncommon to find encroachments which extend into an association’s common areas.
In addition, we find situations where owners, over time, have modified their homes, lots or units and have added fences, decks, additions and other builiding components on the common area. Just because they may have built on the common area does not make them common area and/or the association’s maintenance and repair responsibility. And this is true even if the current owner did not make the addition or encroachment. The mere encroachment of an owner’s improvement into the common area will not change the maintenance responsibilities from the then owner to the association.
(Note: The California Appellate Court issued this as an “unpublished” decision in this case. This means that this case cannot be relied upon or used as precedent in any other court case, although it is binding upon the parties to the case. We nonetheless believe that the case reflects how a court would likely decide other cases with similar facts.)