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HOAs - Changes in the Law 2017 (1 of 4)

HOAs subject to the Davis-Stirling Act were not forgotten in Sacramento's annual enactment of ever more regulations. This is the first of four Blogs to address some of the changes in the statutory law in California affecting common interest developments.

Maintenance duties for the HOA or Association and the owner of a separate interest has been statutorily allocated as to the common area. (California Civil Code section 4775) The historical and general rule that the HOA or Association is responsible to repair, replace and maintain the common area and the owner of a separate interest is responsible to repair, replace and maintain the separate interest is generally in tact. The Declaration of Covenants, Conditions and Restrictions commonly referred to as "CC&Rs" or the "Declaration" can divide these responsibilities differently.

In many common interest developments, there is common area appurtenant to the separate interest. For example, a separate interest townhome may have the exclusive use of common area for a patio, garden or other uses. Who is responsible for the repair, replacement and maintenance of an exclusive use common area? Unless otherwise provided in the CC&Rs (Declaration) of the HOA, the duties are divided as follows: (i) the separate interest owner is responsible for the maintenance of the exclusive use area appurtenant to the separate interest and (ii) the HOA is responsible for the repair and replacement of the exclusive use area appurtenant to the separate interest.

This division in maintenance obligations for exclusive use areas will in certain circumstances result in disagreement between separate interest owners and the HOA over the issue of what is maintenance and what is repair or is replacement required because maintenance was not or not properly done by the separate interest owner.

Fortunately, the HOA has the opportunity to avoid the probable conflicts between the owners of separate interests and the HOA by clarifying the duties and responsibilities in the CC&Rs.

Our recommendation is that the Board of Director for the HOA review these provisions in its CC&Rs to assure clarify or if there are no provisions related to the issue of repair, replacement and maintenance of exclusive use common area, that such provisions be added. For more information on this issue, you can contact Ariel Bedell, an attorney and partner at The Loftin Firm who has extensive experience in the review, amendment and/or preparation of CC&Rs.

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The Loftin Firm, P.C.
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Carlsbad, California 92008-4713

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