‘Common Area’ Sometimes Is Exclusive

QUESTION: Our townhome association has received conflicting advice regarding the responsibility to maintain the deck surface in the complex. Our former manager insisted that California laws specify that “exclusive use” decks, balconies and front doors are the maintenance responsibility of the individual owners.

Our current manager is not aware of any law that would supersede the declaration of convenants, conditions and restrictions (CC&Rs;). He insists that the CC&Rs; should be our guide to determine the maintenance responsibility. Who is right?

ANSWER: Section 1351 of the California Civil Code defines “exclusive use common area” as a portion of the common area designated by the declaration for the exclusive use of one or more, but not all, of the individual owners.

If your association’s declaration (CC&Rs;) does not define “exclusive use common area” then you can rely on the following portion of Section 1351 for clarification:

“Unless the declaration otherwise provides, any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, door frames and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest (unit), but located outside the boundaries of the separate interest, are exclusive use common areas allocated exclusively to that separate interest.”

In Section 1364 of the Civil Code, you will find the explanation of the responsibility for maintenance. Again, the law refers to the declaration (CC&Rs;):

“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 the separate interest and any exclusive use common area appurtenant to the separate interest.”

Although some property managers are very knowledgeable about legal matters pertaining to associations such as yours, I recommend that your board of directors consult an attorney whose practice is primarily community association law. After thorough review of your declaration, the attorney will be able to advise the association about the legal responsibility for the maintenance of the deck surfaces in your complex.

The association should get a legal opinion and then the board of directors can adopt a resolution regarding exclusive use common area maintenance. The board of directors should distribute the information to all of the owners so that maintenance responsibilities become standard operating procedure.

Directors Have Duty to Keep Manager in Line

Q: Our homeowner association has a contract with a management company that includes all the janitorial and landscape work. We have had the same management company for several years. They perform most of the repairs without obtaining competitive bids.

I believe our association is being overcharged for supplies, parts and extra labor. In most cases, the extra work is not approved by the board before it is done. The manager becomes very angry if any of these expenses are questioned. Several thousand dollars in reserve funds have been used, but the manager refuses to disclose where the money was spent.

How can we report this to the Department of Real Estate for investigation?

A: The California Department of Real Estate is responsible for overseeing only the development stage of a project. After the project is sold out, the management of the association is the responsibility of the volunteer board of directors. After control is turned over to the homeowners, the Department of Real Estate does not usually handle any complaints about the operation or management of the association.

Supervision of the management company is the responsibility of the board of directors. The contract may give the management company the authority to perform extra services as you have described. However, the reserve funds should not be available to the manager.

California law requires that reserve funds be under the control of the board of directors. Reserve funds must be kept in a separate bank account that requires two board members’ or officers’ signatures for withdrawals. Expenditures that are paid out of the reserve funds should always be approved by a vote of the board of directors and noted in the minutes of the association’s board meetings.

The board of directors can delegate management responsibilities to the management company but the board has a duty to see that the terms of the contract do not allow the management company to take advantage of the association.

Board Should Act on Uncooperative Owner

Q: I bought my condominium unit about a year ago despite the seller’s disclosure that there was a stain on the ceiling from an unknown leak. The real estate agent assured me it was the condominium association’s responsibility to fix the leak and repair the ceiling.

Due to recent heavy rains, my ceiling now has more damage and the board of directors is not addressing the problem. The property manager says the leak is the result of tile that was installed on the balcony of the unit directly above mine.

I have tried to contact my upstairs neighbor to see if we could amicably resolve the problem. She refuses to discuss it with me.

The board president said the tile was installed without the approval of the board or the architectural control committee.

Where do I go for help?

A: The board of directors has the authority to require that your neighbor cooperate with the efforts to find the source of the water leak. This is especially true if architectural control provisions in the association’s legal documents have been ignored.

If the neighbor refuses to cooperate, the board of directors has the right to demand correction of the problem. The board may have to pay for the legal assistance and the experts who can define the problem and recommend a solution. Then, if the neighbor’s tile installation is found to be the source of the problem, the board can demand that the owner pay for any legal costs and other expenses that the association incurred in order to enforce the association’s legal documents. In addition, the owner can be compelled to make the necessary repairs.

In my opinion, the board has an obligation to assist you in resolving this matter. If the board fails to take action, you have the right to enforce the legal documents as stated above and then pass on your costs to your uncooperative neighbor.

A letter explaining the association’s authority and your rights could be sent to the neighbor. If she continues to be uncooperative, the next step should be obtaining legal advice. Perhaps a letter from the association’s attorney will get her attention.

Hickenbottom is past president of the Greater Los Angeles chapter of the Community Associations Institute (CAI), a national nonprofit research and educational organization. She welcomes readers’ questions, but cannot answer them individually. Readers with questions or comments can write to her in care of “Condo Q&A;,” Box 5068, Thousand Oaks, Calif. 91360.