Question: Everyone in our common-interest development just received a letter from an attorney representing our association. The letter advises us that in less than a month our board of directors will hold a meeting to vote on a "Proposed Water Intrusion Responsibility Policy." The policy states that the "Association will only be responsible for water damage caused by a common-area source if the water intrusion is reported to the association within 24 hours of the actual leak. If an owner allows moisture to remain in their unit for longer than 24 hours, the association cannot be held responsible for any damage or mold, if any, that develops due to the owner's failure to notify the association."
It is my understanding that the association intends to limit its obligation to repair damage from common-area pipe leaks by holding owners to a strict 24-hour notification period for leaks. That means owners who leave their units unattended for a weekend, vacation or because of illness will be responsible for any water damage caused by such a leak. The attorney also stated that the "association is not obligated to insure the common area" and that I should "welcome the policy as a way to require every owner to bear their own responsibility." I pointed out that this new policy conflicts with our CC&R's, but never heard back. Is any of this legal?
Answer: This sounds like the association's attempt to pass common-area maintenance obligations onto the individual homeowners, and under the common-interest development act, that is illegal. All residential, deed-restricted common-interest property is supposed to be managed and maintained by the association.
Specifically, Civil Code section 4775(a) makes the association responsible for "repairing, replacing, or maintaining the common area," unless otherwise provided for in the declaration of a common-interest development.
The association is also responsible for insuring the common property or else it would not be able to file an insurance claim in the event of a large repair or disaster. That would create an undue burden on titleholders who would have to pony up for the expenses on top of all the other fees they pay. The owner's own property insurance would not cover expenses that are the responsibility of the association.
It appears the board may be trying to unilaterally amend the association's governing documents by instituting its water-intrusion policy. But governing documents cannot be amended merely by a new rule or policy. Try as it might, a board cannot "off-load" its legal obligations to another party, nor can it delegate its duty to the individual homeowners, without significant revisions to the governing documents, which require notice to, and a vote of, the titleholders.
The association also cannot set a time limit after which it will no longer repair a problem caused to individual units by some common-area source.
Any failure to repair under this scenario is a breach of the association's duty, which could give rise to allegations of negligence and result in the association not only having to repair the problem but pay for any additional damages caused by a failure to take timely action. And even if a "deadline" to report a leak were appropriate, 24 hours is unreasonable. Any deadline would have to allow for common occurrences such as vacations and illnesses before the clock could start ticking.
This situation seems like fertile ground for a lawsuit with the prospects not good for the association given the clear laws governing these issues.
Should a lawsuit be filed to require the association to fulfill its obligations to repair the water leak, and should the individual owner prevail, the owner would not only be reimbursed for any damages caused to the unit, but would recover attorney's fees and costs as well. A very expensive water-intrusion policy indeed.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.
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