Who Should Pay for Sewer Pipe Repairs?

QUESTION: The board of directors of my homeowner association recently adopted a policy that states that sewage problems will not be the financial responsibility of the association. Their reasoning is that the sewage pipe in front of a particular unit only serves that individual owner so they are now treating it as “exclusive use common area,” even though it is part of the common area plumbing. Do you agree?

ANSWER: The memo from the association’s management company that you included with your letter leaves much to be desired. The brief and inadequate explanation of the term “exclusive use common area” may not be accurate when applied to your association.

The memo states, “If we are going to pay for all plumbing problems, then we will have to have a vote and amend the documents. These repairs will be very expensive and may cause HOA dues to go up again.” In fact, if the association is responsible for the plumbing repairs, then the operating and reserve budget should reflect that expense, and then the cost will be spread across the entire association to all owners. The board has the responsibility and the authority to adopt a budget that adequately covers the association’s financial obligations.

I wonder if the association’s attorney was consulted prior to the board adopting this new policy. Perhaps the association has obtained an attorney’s opinion letter, which will clarify the reasons for the change. You are entitled to receive a copy of such a letter if it exists.

The association’s legal responsibility for maintenance and repair or replacement of plumbing and sewage lines could appear in either the CC&Rs; or the Condominium Plan. Presumably, the association’s attorney would have written an opinion letter only after careful comparison of those legal documents and the California Civil Code Section 1351(i)(1) which states:

“(i) ‘Exclusive use common area’ means a portion of the common areas designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests [units] and which is or will be appurtenant [adjacent] to the separate interest or interests.

“(1) 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, but located outside the boundaries of the separate interest, are exclusive use common areas allocated exclusively to that separate interest.”

Could the word fixtures be defined as plumbing? This may be the word that your association’s board is using to negate their responsibility for the sewer lines. However, the board should be relying on the professional advice of legal counsel in this matter.

Civil Code Section 1364(a) explains the responsibility for maintenance of common areas and the individual units:

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

Since I am not an attorney, I can only cite these sections of the law that refer to your inquiry. This is a confusing and complicated area of the law that has caused legal problems for many associations. If your association has not obtained legal advice, I urge you to consult your own attorney.