Many CC&Rs, particularly those in older communities, do not adequately identify or define maintenance and repair responsibility for exclusive use common area components such as patios, balconies, exterior doors and similar components. And when there is uncertainty between an owner and the association as to who is responsible for a repair, disputes are inevitable. Fortunately, Civil Code Section 4775 fills in the blanks. In the absence of well-defined CC&Rs, we look to Civil Code Section 4775 which currently provides: that 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.
The problem with the above language is that it is vague. For years, this language left much to legal interpretation as to what exactly the owner was responsible for and where does maintenance begin and repair or replacement end. Fortunately, our legislature provided a degree of relief in the following amended Civil Code § 4775 adding section (a) (3), which takes effect January 1, 2017. The clarified language provides that 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.”
The association is responsible for repairing and replacing the exclusive use common area. Although this revised language clarifies the line between maintenance of the exclusive use common area, and repair and replacement of that exclusive use common area, the amendment doesn’t really change the law. Many practitioners have always interpreted Civil Code § 4775 as only obligating an owner to maintain their exclusive use common areas. The 2017 amendment clarified what many of us have always interpreted to be the case.
Amended Civil Code § 4775 defers to the CC&Rs and controls maintenance and repair responsibility only if the CC&Rs do not otherwise provide. The clarified statute, therefore, obligates associations to examine their CC&Rs to determine whether the CC&Rs define exclusive use common area maintenance and repair responsibility. And, if the CC&Rs are not specific, this examination provides associations an opportunity to amend their CC&Rs to either keep the maintenance and repair responsibility consistent with the community’s custom and practice or, to shift repair responsibility for balconies, patios and similar exclusive use components to the owner. Otherwise, the statutory language will control, leaving associations responsible to repair (and fund) what could be costly exclusive use common area repairs.
Amended Civil Code § 4775 also provides associations an opportunity to define exclusive use maintenance responsibility. While the new statute leaves no doubt that the association has the burden of repairing an owner’s exclusive use common area, the association has considerable latitude in defining maintenance responsibility so as to shift some of the repair burden to the owners. For example, if we define an owner’s balcony maintenance responsibility to include only sweeping, and cleaning, then the resurfacing of that balcony falls onto the association as an exclusive use repair. By including balcony recoating as part of an owner’s maintenance responsibility the association shifts that responsibility and expense on to the owner, without having to amend the CC&Rs. This is not to suggest that the owners will welcome additional maintenance obligations without resistance. But certainly those obligations that traditionally have fallen upon owners over time can be expressly stated in a well-defined exclusive use maintenance responsibility policy that supplements the new language of Civil Code Section 4775. The rich history of owner vs. association disputes over maintenance and repair responsibility suggest that a clearly worded statute may not be enough to ensure that owners understand their maintenance obligations.
Finally, in the event newly clarified Civil Code § 4775 results in the Association acquiring repair responsibility for exclusive use components that in the past were assumed to be the owner’s responsibility, associations will need to review their reserve and operating budgets to make sure the added repair expense is budgeting for and included in the annual assessment calculation.