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.
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