Maybe Lawyer, Not Bylaws, Needs Reform


Question: I sit on the board of a 46-unit condominium homeowner association in the Corona del Mar area. Even though our covenants, conditions and restrictions, or CC&Rs;, have not expired, we're trying to update them and the bylaws, but we seem to keep running into conflicts over which laws apply to condominiums versus common interest developments.

While we are working with a reputable attorney, it seems every time we want to include one provision or another, the confusion is compounded when he tells us that such-and-such "legal provision does and/or does not legally apply to our environment."

Exclusive use, common area definitions like garage roofs have suddenly been deemed to fall under "common area," but no other roofs fall under that title. Maintenance and repair responsibilities like party walls used to fall under the function of the homeowners' association, but now he informs us this will require adjoining owners to share the cost. No one can decide about other unit structural walls, entry courts, rear patios and balcony decks, and so on.

Our legal fees on this ambitious project keep rising, yet we are no closer to completing this task than when we first started.

As a board member I am concerned that we engaged in this project at the attorney's insistence, but that he has not made it easy and the fees we are paying him keep piling up. At what point do we tell the attorney enough is enough?

Answer: Amending or updating your CC&Rs; is not something your association must do and the expenses you are incurring to make those unnecessary changes are really a waste of association funds. With one recent exception--and despite any provisions you had in your documents that were invalidated because of a change in the law, or because of a decision in a lawsuit that affected common interest developments--your CC&Rs; are as valid today as they were when they were recorded.

The only change to the Davis-Stirling Act in recent years that seems to mandate that an association take some action to amend its CC&Rs; or bylaws took effect on Jan. 1, and was spurred by governing documents that contain racially restrictive covenants.

If your governing documents contain such restrictions, Civil Code section 1352.5 requires the board to "delete the restrictive covenant, and shall restate the declaration or other governing document without the restrictive covenant but with no other change to the declaration or governing document." If you are looking for a reason to fire the attorney and save money, look no further than the same section of the law that says that, even if you amend them, your governing documents have to be restated "with no other change."

The law itself tells you that a complete rewrite is unnecessary, and you might ask the attorney why you were not given that advice in the first place.

Trying to determine where the responsibility for maintenance lies is not as complex a problem as the attorney appears to be making it out to be. As a general rule, homeowners are responsible for the maintenance of their condominiums and their exclusive use common area, while the association is responsible for the common areas.

This is what the act says is a condominium in section 1351(f):

"A condominium consists of an undivided interest in common in a portion of real property coupled with a separate interest in space called a unit, the boundaries of which are described on a recorded final map, parcel map, or condominium plan in sufficient detail to locate all boundaries thereof ...."

These are "exclusive use common areas" in 1351(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 and which is or will be appurtenant 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."

Separate interest in 1351(l):

"'Separate interest' has the following meanings:

" ... (2) In a condominium project, 'separate interest' means an individual unit ...." Here is what constitutes the common area in 1351(b):

"'Common area' means the entire common interest development except the separate interests therein."

Finally, as for the maintenance responsibility, 1364 says:

"(a) 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."

Where does that leave you and the other homeowners in your complex? As you can see, the roof, whether over the garage or over your condominium, is part of the common area and must be cared for by the association. The other items on your list are a mix of common-and exclusive-use common areas and, as such, the maintenance for each is the responsibility of a different party.

"Party walls," if a part of an exclusive use common area that is right next-door to your neighbor's exclusive use common area, are yours and your neighbor's to repair. The wall is part of your exclusive use common area. The same is true for rear patios and balcony decks if used solely by the owner of the home to the exclusion of the other homeowners.

Structural walls, the act says, are maintained by the association.

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:

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