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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:3


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:4791


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:3767


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:180


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:4791


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:3


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

Posts:4791


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:136


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:3


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:4791


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:136


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:180


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:4791


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:136


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
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Forums > Homeowner Association > HOA Discussions > Does exterior wall surface of my unit clarify as 'common area appurtenant to the separate interest'?



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