Responsibility for sewage line under common property

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

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

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.)

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

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?

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, 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.