Association Is Responsible for Shared Areas

Question: When we bought our home in a common interest development 25 years ago, no one disclosed an existing common area problem that affects our home.

The problem is water draining into our unit from the outside common area and water leaking into our unit through the foundation wall. It is likely the problem wasn’t noticeable at that time, because it wasn’t raining. But before closing escrow there was an inspection and no problems were noted.

More than five years ago we brought that and another problem--a substantially cracked common area concrete alleyway that subsequently extended through our unit’s foundational slab--to the attention of the board.

The board said that it was the prior owner’s responsibility to tell us about the common area problems.

This problem worsens with time. The association’s insurance refused to pay for damages caused by the problem, saying the board had prior knowledge. Now the board tells us the common area problem has been there for a long time, so it’s not the board’s problem.

We hired a professional engineer at considerable cost because the board would not do so. The engineer investigated the matter and spoke with past board members. The engineer’s report indicated that prior boards were aware of the problem; this awareness was evidenced by the makeshift patch job that exists to this day. The report said the problem must be repaired professionally and that it directly threatens the integrity of our home.

The board does not want to spend the money to professionally repair the problem. Even though the board knows the problem has worsened and the cost to fix it is rising, it has told us that when we purchased here we accepted the problem.

The board did not cooperate with two mediators we paid for, and it refuses to return the arbitrator’s phone calls.

Are we expected to continue to live with the problem and not be allowed to fix it?

Answer: The law dictates that the association is responsible for repairing and maintaining the common areas and, by inference, denies to homeowners the right to repair it even if the damage threatens the homeowner’s separate interest.

Should you be forced to live with the problem for another 25 years? No. Can you fix it? No, you cannot. Can you do anything about it? Yes, but as you can tell by the board’s response to the mediators, your options are limited. You may be able to file a lawsuit, which while costly and time consuming, may be no more of a delay than what you have already experienced.

Resorting to the courts to decide problems like this merely emphasizes the difficulties encountered when boards do not fulfill their obligations to properly maintain the common area, and there is no penalty under the law for that failure.

Section 1364 of the Davis-Stirling Act specifies an association’s obligations, saying “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.”

In other words, your association is responsible for repair and maintenance of the common areas outside your home.

The engineer’s report references the patchwork and says that it must be repaired professionally. Because of that report, your association now knows about and has notice of the common area problems.

The report and other materials you have collected may be evidence of the damages to your separate interest by the board’s failure to act as required by law.

Individual homeowners rarely, if ever, have total and unmitigated control over common areas or grounds outside their home. Given the engineer’s report and the fact that the problem is in the common area, the board would be better off assuming its responsibility and fixing the problem.

Damage to your home because of damage to the common area harms all the residents by reducing the individual and overall property values.

If the court’s decision is in your favor, your board will not be able to disregard it as they did the mediator’s findings.

A lawsuit will cause more problems for your association than simply spending the money to correct the problem, and if you are required to sue, each homeowner may have to share in paying any damages that could be awarded if the association’s insurance policy does not.

Stephen Glassman is a writer and an attorney in private practice specializing in corporate and business law. Donie Vanitzian, J.D., is a writer and arbitrator and manages commercial property. Both live in common interest developments and have served on various association boards. Please send questions to: Common Interest Living, P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to: CIDCommonSense@aol.com.