Dear Kelly: Our condo roofs will need replacement soon and there are inadequate reserves. The board had a membership vote on two choices: Increase monthly dues for some years or have owners be responsible for their own roofs. Most of the owners voted for the option of “owner responsibility.” The board obviously is in favor of giving re-roofing responsibility to owners. The CC&Rs state that the association repairs, maintains, and replaces the roofs, but the directors set up a committee to work out details of “owner responsibility.”
Do they have a right to institute such a change based on a sketchy vote without further details having been given? Don’t they have to change the CC&Rs with a new vote before surrendering re-roofing responsibility? Thanks, C.C., Bakersfield
Dear C.C.: Per Civil Code Section 4775, unless the CC&Rs say otherwise, the HOA maintains, replaces and repairs common areas. So, even though there was some type of membership vote or poll, the CC&Rs must be amended to reallocate the roof responsibility to the individual members. That will require a membership vote in compliance with the applicable election procedures. Only CC&Rs can reallocate this responsibility — not rules, board resolutions or committees.
I assume your condominium project is “townhouse” style, with residences connected side-to-side, but unless there are clear dividers between each unit, it can be hard to determine where given roofs start and stop.
It is unfortunate that the reserves were not properly accumulated. This is unfortunately the normal outcome – when the day comes that a major component needs replacement, the homeowners at that time suffer the consequence of that association’s failure to plan and be prepared.
Dear Kelley: At my condominium, our CC&R’s say nothing about who is responsible for the outside water and sewer pipes which supply and drain homes. However, the HOA says it is my responsibility because it only serves my home even though it is outside my building and in the common area. The association says it is their rule that the homeowner must pay. Who is responsible? Thank You, S.S., Huntington Beach.
Dear S.S.: In past years, many HOA attorneys took the position that a pipe which only served one unit was “exclusive use common area” and was homeowner’s responsibility. However, two major changes in the law prevented that. One was the modification of Civil Code Section 4475 (referenced above) in 2017 to make it clear that HOAs repair and replace exclusive-use common areas as well as other common areas, unless the CC&Rs provide otherwise. The other was the court decision in Dover Village v. Jennison in 2010, which rejected an HOA’s position that drainpipes exclusively serving one unit were “exclusive use common area.” The court noted that the CC&Rs were silent on how the pipes were characterized.
The result of the Dover Village opinion and the change to Civil Code Section 4475 is that pipes outside the unit are not going to be considered exclusive-use common area unless the CC&Rs say so, and so their maintenance, repair and replacement will normally be HOA responsibility, unless the CC&Rs say otherwise. Rules, board resolutions or attorney opinions are not as important as the express language of the CC&Rs.
This is a subject for discussion when updating HOA CC&Rs.
Kelly G. Richardson, Esq. is a fellow of the College of Community Association Lawyers and a partner of Richardson Ober DeNichilo LLP, a law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.