Who is responsible for Exclusive Use Common Area that was previously updated / improved by association

Started by HaykP • 8 replies • 2766 views

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HaykP (California)
Posts: 50

Posted:

Hi,

Several years ago (I believe in 2006) association made a special assessment and updated / improved (waterproofing along with updated fence) exclusive use common area (that is balcony). After that improvement now wood fence has been disintegrating slowly and balcony has been sinking due to contractors doing a poor job and association not properly checking their insurance, license etc. I guess.

Now I was wondering if due to the fact that association in fact made a special assessment and updated / fixed / modified Exclusive Use Common Area it now is responsible for maintaining it. Our CC&R is not clearly defining who is responsible for maintaining exclusive use common area.

Most recent reserve study done in 2009 did include our balconies in it, but board claims that it was done by mistake and that balconies are responsibility of homeowners.

So are there some regulations, civic code or law that can clarify this to me?

Thanks!

MikeD13 (Virginia)
Posts: 9

Posted:

Are you in a condo or HOA, and in which state?

TimB4 (Tennessee)
Posts: 21,046

Posted:

What do your CC&Rs say the Association is responsible for?
What do they say the member is responsible to maintain?

The answers you seek will be in your governing documents.

TimB4 (Tennessee)
Posts: 21,046

Posted:

Oops, I now got caught up in answering an old thread (original posting May 2012)

Hayk,

Has this issue been resolved or answered in another thread?

Tim

HaykP (California)
Posts: 50

Posted:

MikeD13,

I am in Condo that is part of HOA. My condo is in Los Angeles, CA.

TimB4,

CC&R is not that clear about that, but seems that member is mostly responsible for common-private area.
And no, this issue hasn't been resolved or answered in any other thread.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Exclusive Use Common Area it now is responsible for maintaining it. Our CC&R is not clearly defining who is responsible for maintaining exclusive use common area.

Typically an Exclusive Use Common Area is defined as an area that "is" a common area, which means the HOA is responsible to maintain it, but it is only used exclusively by 1 (or sometimes more) units.

So the HOA must maintain your deck, but only you are allowed to enjoy it. The other hoa members cant decide they want to use your deck.

HaykP (California)
Posts: 50

Posted:

SteveM9,

Is there some California code / Davis-Stirling that clears that up? Because our CC&R and By-Laws are really vague.

DanL2 (California)
Posts: 5

Posted:

Read the CC&Rs very carefully, because maintenance of exclusive use areas can be located or expanded upon in several areas of the document. Consult with an attorney, because documented past action (meeting minutes) of the HOA does have weight. Absent of Governing documents with specific language, then the Davis Sterling act is there as an enforceable backup.

Davis Sterling Act (Look up Davis Sterling Exclusive use area in google and you will see this)

Maintenance Responsibilities. Unless CC&Rs provide otherwise, 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.
(Civ. Code §4775(a).)

Civil Code §660. Appurtenant Defined.
A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.

As I under stand there was a new law passed in CA, effective 2017, that states that the unit owner is responsible for maintenance of an exclusive use area but the HOA is responsible for replacement, e.g., painting fence vs. replacing a fence. Again consult with an attorney.

RichardP13 (California)
Posts: 163

Posted:

Dan

The post was 2 1/2 years ago.

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