What does Exclusive Use Maintenance mean? Below is an article from the Davis-Stirling.com Newsletter by ADAMS | STIRLING PLC regarding the business of HOA Board and members in regards to Exclusive Use Mantenance.
QUESTION: What does Exclusive Use Maintenance mean?
ANSWER: Association documents routinely assign maintenance duties between owners and the association. Unfortunately, exclusive use common areas are often left out or muddled.
For example, in condominium developments, older CC&Rs are vague or silent when it comes to balcony and plumbing maintenance. In planned developments, fence maintenance can be an issue.
Old Default Provision. To resolve the problem, the Davis-Stirling Act created a default provision that assigned exclusive use maintenance to owners. The Act did not define maintenance but everyone understood it to include repairs since most dictionaries define it as such.
New Default Provision. Starting January 1, 2017 a new default provision goes into effect. Unless your CC&Rs state otherwise, owners continue to be responsible for maintaining their exclusive use areas but the association will be responsible for repairing and replacing them. (Civ. Code §4775(a)(3).) By separating repairs from maintenance, the legislature created a problem. When asked about it in a recent interview, presidential candidate Bernie Sanders said, “It was huge, huge!”
Confusion Reigns. Since maintenance and repairs were once synonymous, many CC&R provisions in the 50,000 associations in California will be upended. Governing documents throughout the state were routinely drafted making owners responsible for “maintenance” without addressing repairs and replacement since they were understood.
Who Pays? What does “maintenance” mean once repairs and replacement have been stripped away? The answer is important because if owners fail to maintain something, the association must repair it. When that happens, the owner pays since he negligently failed to maintain it. Unfortunately, no one can agree what maintenance means, which means legal disputes will follow.
Maintenance Redefined. Generically, we can say that maintaining something is to preserve it in its original condition so as to prolong its life. One reserve specialist offered the following practical definition:
Maintenance means those things that can be done by unskilled individuals with household tools. Examples include sweeping a balcony and keeping the balcony drain clean.
Repairs are typically accomplished by licensed individuals requiring specific tools, materials, or training. Examples include sealing a balcony surface to extend the useful life of that surface until it must be removed and resurfaced.
Still Unclear. Under this definition, balcony maintenance is mostly limited to keeping it clean. When I polled others in the industry, some argued that maintenance is more than sweeping a deck–it means applying or paying someone to apply a seal coat since that extends the life of the deck. The same problem relates to fences–do owners merely keep them clean or must they paint them?
RECOMMENDATION: To avoid legal wrangles, associations need to clearly define an owner’s maintenance duties for balconies, decks, patios, fences, roofs, plumbing, and other exclusive use common area items. Each association will need to decide for itself whether it wants to maintain deck coatings or assign that task to owners–and if so, what does that mean? Associations should create maintenance charts with clearly defined duties. Those with existing charts will need to update them to include more detail. Some associations will need to amend their CC&Rs.
Thank you to Robert Nordlund, CEO of Association Reserves, Inc. for raising the issue and providing maintenance definitions. Additional thanks to attorney Jay Hansen of Epsten Grinnell & Howell, attorney Wayne Louvier of ADAMS | STIRLING PLC, and Robert Browning of the Browning Reserve Group for their input on this issue.
For more knowledgeable information regarding the business of HOA’s, visit: The Davis-Stirling.com Newsletter