Q: The roofs of our condos will have to be replaced soon and the reserves are insufficient. The council had a membership vote on two choices: increase monthly dues for a few years or make homeowners responsible for their own roofs. Most owners voted for the “owner’s liability” option. The council is obviously in favor of entrusting the responsibility of repairing the roof to the owners. The CC&R indicate that the association repairs, maintains and replaces roofs, but the directors have set up a committee to work out the details of “owner’s liability”.
Do they have the right to institute such a change on the basis of a summary vote without further details being given? Shouldn’t they change the CC&R with a new vote before relinquishing responsibility for the roof repair?
– CC, Bakersfield
A: In accordance with Article 4775 of the Civil Code, unless the CC&R decides otherwise, the HOA maintains, replaces and repairs common areas. So even if there has been some type of voting or member poll, the CC&R must be changed to reassign responsibility for the roof to individual members. This will require a member vote in accordance with applicable electoral procedures. Only CC&R can reassign this responsibility, not rules, board resolutions or committees.
I’m assuming your condominium project is ‘townhouse’ style, with residences connected side by side, but unless there are clear dividers between each unit, it can be difficult to determine where to start and where to start. the donated roofs stop.
It is regrettable that the reserves were not properly accumulated. This is the normal result: when the day comes when a major item needs to be replaced, the owners at that time suffer the consequences of this association’s failure to plan and prepare.
Q: In my condo, our CC&R doesn’t say anything about who is responsible for the exterior water and sewer lines that supply and drain the homes. However, the HOA says it is my responsibility as it only serves my house even though it is outside my building and in the common area. The association says it is their rule that the owner must pay. Who is responsible?
– SS, Huntington Beach.
A: Over the past few years, many HOA attorneys have felt that a pipe that serves only one unit is “common area for exclusive use” and is the responsibility of the owner. However, two major changes in the law prevented this. One was the amendment of Civil Code Article 4475 (mentioned above) in 2017 to make it clear that HOAs repair and replace common areas for exclusive use as well as other common areas, unless CC&R do not have otherwise. The other was the court decision in Dover Village v. Jennison in 2010, who rejected an HOA’s position that drain pipes exclusively serving one unit were “a common area for exclusive use.” The court noted that CC&R were silent on how the pipes were characterized.
The result of the Dover Village opinion and the amendment to Article 4475 of the Civil Code is that the pipes outside the unit will not be considered a common area for exclusive use, unless CC&R say so, and therefore their maintenance, repair and replacement will normally be HOA responsibility, unless CC&R decides otherwise. Rules, board resolutions or advice from lawyers are not as important as the explicit language of CC&R.
This is a topic of discussion during the CC&R HOA update.
Kelly G. Richardson, Esq. is a member of the College of Community Association Lawyers and a partner of Richardson Ober DeNichilo LLP, a law firm known for providing advice to community associations. Submit your questions to [email protected] Earlier columns on www.HOAHomefront.com.