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Subject: Does exterior wall surface of my unit clarify as 'common area appurtenant to the separate interest'?
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EugeneG
(California)

Posts:4


02/07/2018 9:50 PM  
Have a unit in four-plex building. Inspector reported fungus organisms destroying siding - outside wall surface.
HOA manager claims it is my responsibility according to Civil Code §4775.
Checking the doc I see
"(3) 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 and the association is responsible for repairing and replacing the exclusive use common area."

So my question is - does exterior wall surface of my unit clarify as 'common area appurtenant to the separate interest'?

Many Thanks,
Eugene
KerryL1
(California)

Posts:5842


02/07/2018 11:05 PM  
How do your CC&Rs define "common area?" The CA civ. code isn't useful unless we know what your own docs say.
JanetB2
(Colorado)

Posts:4151


02/08/2018 12:34 AM  
So 4775 states:

(a)(1) Except as provided in paragraph (3), unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area.

(2) Unless otherwise provided in the declaration of a common interest development, the owner of each separate interest is responsible for repairing, replacing, and maintaining that separate interest.

(3) 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 and the association is responsible for repairing and replacing the exclusive use common area.

(b) The costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.

(c) This section shall become operative on January 1, 2017.

Essentially 1, 2, and 3 all note “unless otherwise provide in the declaration” ... therefore, what does your declaration state??? HOWEVER, under (3)(c) it also notes that this section “shall become operative on January 1, 2017” ... so when was the situation first reported???
BenA2
(Texas)

Posts:531


02/08/2018 4:51 AM  
If the manager cited the civil code you provided, then it seems he or she believes your CC&Rs don't cover this, if they did, the civil code would not be relevant, although I would check your CC&Rs to be sure.

Your exterior wall surface would be a "common area appurtenant to the separate interest" but the question is, "is it an EXCLUSIVE USE common area appurtenant to the separate interest?"

According to Davis-Sterlings.com walls are not included in the definition of exclusive use. It does include door, windows, and balconies which would be there solely for your use. So, I think your manager is mistaken.

https://www.davis-stirling.com/HOME/Exclusive-Use-Area

If the outside wall were exclusive use, then the question becomes, "is fixing the problem maintenance or replacement and repair?" Replacement and repair are the association's responsibility.

I would make these arguments to the manager and your board (the manager does not have final say). If they don't agree I would get an attorney's opinion.
KerryL1
(California)

Posts:5842


02/08/2018 8:43 AM  
Our HOA also is attached condo units. The exterior walls are common area according to our CC&Rs and are the HOA's responsibility to maintain and repair.

EugeneG
(California)

Posts:4


02/08/2018 4:10 PM  
Asked manager to clarify what CC&Rs states.
Trying to get a copy of documents.
KerryL1
(California)

Posts:5842


02/08/2018 4:35 PM  
It's important to know that the CC&Rs and "declaration" are the same thing. Your HOA prop. mgr. certainly should have a copy. You should have received a copy when you closed the escrow in your condo.

Is your entire HOA one fourplex?
GuyM1
(Ohio)

Posts:273


02/10/2018 8:37 PM  
Here may be a way you can know who's responsible for the maintenance of the siding, Who paints the siding are you responsible or the HOA? If the HOA paints the siding I would say it's their responsibility to repair and maintain the siding. Get a copy of your documents from the Board or the state.
EugeneG
(California)

Posts:4


02/12/2018 4:26 PM  
Got a copy of Homeowners Association CC&Rs from manager.

Still confused - the paragraph states exactly:
========================================
Exterior Maintenance of Residences:

The Association shall provide maintenance for Each Residence on a Lot in the Project. Such exterior maintenance shall include the painting, repair, replacement and care of exterior building surfaces, gutters and downspouts. Such exterior maintenance shall not include maintenance, replacement or care of any glass surfaces, exterior doors, or any skylights of a residence, nor any utilities wires, pipes or other such conduits which may be located on the exterior of the Residence. Furthermore, such exterior maintenance shall not include any structural repairs or maintenance of the walls, foundations, other structural elements of the Residences. The Board shall have the absolute discretion to determine whether the painting, repair or other maintenance of a Residence is necessary or structural in nature.
==========================================

So:
1. Is fixing fungus issue in siding piece of wood considered as structural repair?
2. Does it mean Board can overrule whatever is stated in CC&Rs?

KerryL1
(California)

Posts:5842


02/12/2018 5:22 PM  
"Such exterior maintenance shall include the painting, repair, replacement and care of exterior building surfaces..."

I'd say your siding is the the HOA's responsibility. But It's not the PM who decides who will treat the fugue, it's your board of directors. You may have to send them an agenda item about this matter and attend an open meeting when the board discusses it.

(Apparently, the actual concrete structure and/or foundation is not the HOA's responsibility.)
GuyM1
(Ohio)

Posts:273


02/12/2018 6:06 PM  
Siding is covered. Contact the Building Inspector, ask him 2 things. 1 he writes a violation letter on this and sends it to the President of the HOA. OR 2-give you a letter that says that it is deteriorating the siding and that it needs cleaned and painted to stop the deterioration of the siding. Inspector should be able to do number one IMO. I'm doing it right now to stop water intrusion city send violation letter and their fixing it Thursday or Friday. Once you get either done you have given the HOA knowledge of the problem and if any damages occur from this they will be responsible especially if it damages your property. Keep all correspondences and get pictures with dates on them, letting the board know sets a date and they should act promptly on it.
BenA2
(Texas)

Posts:531


02/12/2018 7:58 PM  
Posted By EugeneG on 02/12/2018 4:26 PM
Furthermore, such exterior maintenance shall not include any structural repairs or maintenance of the walls, foundations, other structural elements of the Residences. The Board shall have the absolute discretion to determine whether the painting, repair or other maintenance of a Residence is necessary or structural in nature.
==========================================

So:
1. Is fixing fungus issue in siding piece of wood considered as structural repair?
2. Does it mean Board can overrule whatever is stated in CC&Rs?




I think they are considering fungus in the siding as "maintenance of the walls. . ."

The board cannot override the CC&Rs but the last line you quoted from your CC&Rs seems to give them sole discretion to determine the type of repair that it is. However, I would guess that a statement giving the board the right to interpret the CC&Rs may not be valid in some states. I would speak to an attorney to be sure.
KerryL1
(California)

Posts:5842


02/12/2018 8:26 PM  
I don't know much about such things, Ben. But I think siding is ON the structural walls. Guy's approach looks good.

But as a last re sort, you may need to consult with an attorney, Eugene.
GuyM1
(Ohio)

Posts:273


02/14/2018 6:03 PM  
Hi Eugene
Hope things are getting taken care of for you. Please update us how it's going so others can use your experience to help them if in the same circumstance. Thanks
EugeneG
(California)

Posts:4


02/25/2018 5:00 PM  
This is excerpt from official reply form Association manager:
---------
The Declaration of Covenants, Conditions and Restrictions (Declaration) define the unit maintenance
responsibilities of each owner. Responsibility for damage caused by wood destroying pest or organisms is
further addressed in California Civil Code Section 4780, which state:

... In a planned development as defined in section 4175, unless a different maintenance scheme is provided in the declaration, each owner of a separate interest is responsible for the repair and maintenance of that separate interest as may be occasioned by the presence of wood-destroying pests or organisms...

Please be advised that dry rot and fungus and fungus damage are wood destroying organisms. Section I termite
report items (those requiring correction to obtain termite clearance) which note of presence of termites, dry rot, or fungus in the siding or other wood members of a unit are the repair responsibility of unit owner.
-----

Looks like he considers Civil Code having higher precedence over CC&Rs.
What has higher priority CC&Rs or Civil Code?
KerryL1
(California)

Posts:5842


02/25/2018 5:22 PM  
CA Civ. code section 4175: "... unless a different maintenance scheme is provided in the declaration, each owner of a separate interest is responsible for the repair and maintenance of that SEPARATE INTEREST as may be occasioned by the presence of wood-destroying pests or organisms..."

Most of this thread has been how to define the siding. I have not seen any evidence that it is your own separate interest.

Also, do you know if the PM sent this as the board's decision? Or just their own interpretation???

I'm afraid if the board won't let you meet with them to discuss this, you're gonna need an attorney. You have requested such a meeting in writing via the PM, right?

You'll wan to quote your won CC&Rs: "Such exterior maintenance shall include the painting, repair, replacement and care of exterior building surfaces, gutters and downspouts." To my eye, this means the HOA maintain & cares for & repairs the siding.
BenA2
(Texas)

Posts:531


02/26/2018 6:32 AM  
The civil code would always take precedence if they conflict but in this case the statement, "unless a different maintenance scheme is provided in the declaration" gives the declaration higher priority if it has a different maintenance scheme. So, unless your declaration specifically puts the responsibility on the HOA, you have to follow the civil code which seems clear that it is your responsibility.
KerryL1
(California)

Posts:5842


02/26/2018 8:14 AM  
But what isn't clear, Ben, at least not to me, is whether the siding is an Owner's separate interest.

And, his CC&Rs do say, "Such exterior maintenance shall include the painting, repair, replacement and care of exterior building surfaces, gutters and downspouts." I'd call siding an exterior surface, but maybe I'm off base here.
JohnC46
(South Carolina)

Posts:7812


02/26/2018 8:49 AM  
The way I read all, the HOA is responsible for the outside wall surface thus anything growing on it like a fungus as the OP originally said.
DouglasM6
(Arizona)

Posts:724


02/26/2018 9:22 AM  
It's either going to be the HOA or the four units that share the common area (the building). There is no way this should fall on one unit owner. (unless I just don't understand what a four plex is).

You need to take everything you've received from them, as well as your CC&R's and go see an attorney.
JeffT2
(Iowa)

Posts:417


02/26/2018 10:01 AM  
The key question now is: What is the definition or description of your unit, also known as your separate interest, in your governing docs (CC&R)?
KerryL1
(California)

Posts:5842


02/26/2018 10:26 AM  
I'm with you, Jeff. How, Eugene, do your CC&Rs define "separate interest?"

It's also not clear to me that the OP or the HOA mgr. see the distinction between exclusive use common areas and common areas.
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