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Subject: Responsibility for sewage line under common property
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Author Messages
TinoS
(California)

Posts:77


04/30/2011 11:07 AM  
We are HOA in California. 16 townhouse units.

Each unit has a sewage cleanup valve a few feet into the common driveway and from there each unit has iron pipe that goes another 15-30 feet out to a central clay sewage pipe running under the driveway.

I see nothing in our CC&Rs to specifically state whose responsibility it is for the individual lines to the central sewage.

We have an owner that has paid for a drain inspection where the camera detects that she has broken pipe to the central sewage. She wants us to pay to repair it. As far as I can tell the CC&Rs don't cover this in any way.

Tino
TimB4
(Virginia)

Posts:8998


04/30/2011 12:08 PM  
Are you considered a condominium?

Who owns the property the pipe is on?


TinoS
(California)

Posts:77


04/30/2011 1:10 PM  
We are a Common Interest Development.

The break in the pipe is under the common area driveway. Each unit has a separate pipe to the common pipe. Each unit's pipe is under common area once it exits past the garage door of each townhouse.

Tino
TimB4
(Virginia)

Posts:8998


04/30/2011 1:17 PM  
Because the break is on the common area property and because the there is nothing in writing specifying who has the responsibility, I would suspect that the HOA would be responsible.

However, an argument could be made that since the pipe is servicing only one member, that the individual member should pay to fix it.

Perhaps the Association can come to a compromise. The owner pays for the repair of the pipe. The HOA pays for the repair of the driveway after they get to the pipe.

Realistically, The pipe probably broke due to some flaw in the driveway foundation that caused it to sink, applying too much weight on the pipe.

Tim
TinoS
(California)

Posts:77


04/30/2011 2:35 PM  
According to the drain repair people the pipe camera shows that the pipe is breaking from tree roots. (The trees are growing on city property, not even HOA property, with the roots extending 50 feet away. Eucalyptus.)
PeterD3
(Florida)

Posts:708


04/30/2011 3:06 PM  
Common Property or not, in some cases the local city or sewage authority (for lack of a better/correct term) may be responsible beyond the 'clean-out'.

This could be complicated by the tree issue but it is worth an ask as the answer is always No until you ask.
GlenL
(Ohio)

Posts:5109


05/01/2011 1:43 AM  
Tino, this is an article from davis-stirling.com on a sewer line breakage in a condo complex, I believe the courts ruling would be the same for your community since your CCC&r's are silent on the matter and the break occurred under a common area drive:

Sewer line maintenance

Line Replaced. Patrick Jennison had a leaky sewer pipe two feet beneath his condominium's concrete slab that vented sewage into his unit. The Dover Village Association cut through Jennison's floor, jack hammered the concrete slab underneath, and replaced 50 feet of sewer pipe that connected his condo to the main sewer line.

Owner Billed. Because the damaged line exclusively serviced Jennison's condo, the Association properly deemed it exclusive use common area. As provided for in the Davis-Stirling Act, HOAs are responsible for repairs to common areas while homeowners are responsible for their units and exclusive use common areas appurtenant to their units. Civil Code §1364(a). Accordingly, the Association billed Jennison for the $15,000 it spent repairing the line. Jennison refused to pay and the Association sued.

Court Review. The court examined the entire text Civil Code 1364(a), which states that owners are responsible for exclusive use common areas "unless otherwise provided in the declaration." Because the statute defers to an association's CC&Rs, the court turned to the Dover Village governing documents. It found that the CC&Rs were silent as to maintenance duties involving exclusive use sewer lines. The CC&Rs did, however, specifically designate patios and garages as exclusive use common areas to be maintained by owners. By expressly assigning maintenance duties for these exclusive use areas, the court concluded that all other exclusive use areas were the responsibility of the Association. Accordingly, the court found for Jennison and against Dover Village. Dover Village v. Jennison.

RECOMMENDATION: Most associations have outdated governing documents when it comes to maintenance duties. To avoid costly litigation, associations should update their documents to clearly define maintenance responsibilities. Some associations make the HOA responsible for all maintenance. This usually results in higher monthly dues and occasional special assessments but spreads the cost across all owners. Other associations prefer to keep dues as low as possible and make individual owners responsible for their maintenance expenses as if they lived in a single family home. Both are legitimate policies but whichever one is selected must be clearly defined in the CC&Rs. -Adams Kessler PLC


"Common sense is like deodorant--the people who need it most never use it."
SiM
(California)

Posts:5


05/05/2011 2:10 AM  
THE HOA IS RESPONSIBLE.

Civil Code 1364(a) does not state that the owner is responsible for "repairing" or "replacing" exclusive-use common areas:
"(a) Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common areas, other than exclusive use common areas, 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."
TinoS
(California)

Posts:77


05/05/2011 8:07 AM  
SiM, I must be missing something. It seems to me that since the pipe is the exclusive use of that owner (it's carrying only sewage from that unit) but on the common area it would be in the category where the HOA is not responsible, rather than the opposite. Why do you interpret it as the HOA's responsibility?
RogerB
(Colorado)

Posts:4874


05/05/2011 1:03 PM  
SiM, If you do not believe the owner is responsible for exclusinve-use common areas then apparently you do not equate "maintaining" with "repairing" or "replacing. I do think you are responsible based on your post:
"............ the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.".
SiM
(California)

Posts:5


05/06/2011 2:00 AM  
Sorry if I wasn't clear. Here is how someone else explains it:

"Section 1364 says that the association
repairs, replaces and maintains common
area other than exclusive use common areas,
unless the governing documents state
otherwise. One would assume then that
members are to repair, replace and maintain
their respective exclusive use common areas.
However, to exclusive use common areas,
the section only says that the member is
responsible to maintain it. So who repairs
and replaces exclusive use common areas?
Most legal practitioners resolve this hole in
the statute in favor of the member, and
opine that the association is required to
repair and replace exclusive use common
area items, unless the governing documents
state otherwise."
SiM
(California)

Posts:5


05/06/2011 2:47 AM  
Dover Village Association v. Jennison

Ordinary condominium buyers might expect a secure place to park and exclusive use of the patio immediately adjacent to their units. The question is whether sewer lines also come within the same category.

...

First and most fundamentally, interconnected sewer pipes cannot really be said to be the "fixtures" of any particular unit. A sewer system is a series of interconnected pipes which ultimately feed into one common line. Differentiating parts of that interconnected system is unreasonable. The portion of piping coming from one unit is no more affixed to that unit than it is to the sewer system and other pipes or piping within that system.

...

Such language is perfectly consistent with normal patio and garage use. It is not consistent with the idea that individual unit owners somehow control the sewer lines beyond the boundaries of their unit.

http://www.davis-stirling.com/MainIndex/CaseLaw/DoverVillagevJennison/tabid/3103/Default.aspx
TinoS
(California)

Posts:77


05/06/2011 7:27 AM  
SiM, thank you. I now understand your point. The other board members want to make the owner pay for it, and I am inclined in that direction, but I do now understand that we might not have the law on side if the owner decides to press the issue.
RogerB
(Colorado)

Posts:4874


05/06/2011 8:12 AM  
SiM, We have had to address your question several times when it was not clearly defined in the CC&Rs. A townhome association we manage provides a good example of how we finally resolved the problem. Last year we were involved in amending and restating the townhome's CC&Rs. The responsibility of the individual unit's sewer lines was addressed in the following Definitions and Maintenance Articles:

ARTICLE I - DEFINITIONS
(t) “Limited Common Area” shall mean and refer to a portion of the Common Area which is
restricted to the use of only one Lot or Unit, which shall include but not be limited to the
sewer lines from the point where they leave the Lot boundary to the point where they
connect with a shared service line.

ARTICLE VIII - MAINTENANCE RESPONSIBILITIES
Section 8.2 Owner Maintenance.
Except as set forth in Section 8.1 herein above, the Owners shall be responsible for all
maintenance repair and replacement of the Lots and homes except those included in Section 8.1,
including but not limited to, the following:
All components of the Lots and homes including the walls and wall coverings; all doors
including garage doors and door frames, coverings, and seals; all windows and glass
including window coverings, frames, and seals; all external items on the Lots and homes
which are controlled from inside the homes, including but not limited to, electric outlets,
lights, sump pumps, individual sewer lines from the interior of the homes upon the Lots up
to the point where the line joins a common service line shared by more than one Lot, even
though part of these sewer lines will be outside of the Lot boundaries, and water faucets
and other Limited Common Area items, including but not limited to, solariums, solar
systems, satellite dishes, cables and wiring attached to the Unit; and those items listed as
the Association’s responsibility if the need for maintenance or repair is caused by the
negligent acts or omissions of an Owner, their family, tenants, residents or invitees.
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Forums > Homeowner Association > HOA Discussions > Responsibility for sewage line under common property



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