Exclusive Use Common Area — It’s Complicated, Misunderstood and, Hopefully, Soon to be Clarified
By David Swedelson, Condo Lawyer and HOA Attorney, Partner, SwedelsonGottlieb, Community Association Attorneys
A pipe, window or some other element of the common area leaks or breaks, and a condo association board decides that it is exclusive use common area and the unit owner’s repair and/or replacement responsibility, as it serves only that one unit. The problem is that this is not what the law provides. And while it may be what many board members and managers want to see happen, this is really contrary to the condominium concept where, unless the CC&Rs otherwise state, the association is responsible for the repair or replacement of the common area, and exclusive use common area is part of the common area. Let's face reality, we really do not want to see owners opening up and trying to repair the common area, as they may likely not do the right repair, and that may come back to haunt the association in the future (after that owner has sold and moved).
At almost all condominium associations (and this issue is more of an issue at condo associations then it is at planned development homeowner associations), it is important for the board and management (and the owners as well) to know what the association versus the owner is responsible to repair and, to an increasingly lesser extent, what is exclusive use common area and what is simply common area. Associations cannot simply decide that because the thing that broke serves only one unit, it is that unit owner who is responsible for its repair or replacement.
The Davis-Stirling Common Interest Development Act, California’s community association law, provides at Civil Code Section 1364(a) that, unless otherwise provided in the CC&Rs, the homeowners association is responsible for repairing, replacing or maintaining the common areas (other than exclusive use common areas), and the member is responsible for maintaining his or her separate interest and any exclusive use common area appurtenant to that separate interest. Most CC&Rs of California community associations follow the statutory scheme. But it is important to review the CC&Rs to see if the maintenance and repair obligations are other than as set forth in the Davis-Stirling Common Interest Development Act.
Many board members and managers read this code section and somehow conclude that because it says that the homeowners association is responsible for repairing, replacing or maintaining the common areas “other than exclusive use common areas” that this means the owner is responsible for the repair of the exclusive use common area. This is exactly what happened in Dover Village Association v. Jennison, a 2010 court of appeal decision, where a California Appellate Court addressed this question as to who (the owner or the condominium association) is responsible for repairing/replacing a leaking sewer pipe (located in the common area) that serves only one unit. I suspect that some may find the Court’s conclusion surprising, especially if you have subscribed to the proposition that an element of the common area that serves only one unit is that unit’s repair responsibility. While I found the Court’s decision in the Dover Village case to be somewhat flawed, I believe the Court did reach the correct conclusion — just because a pipe, duct or other common area component serves only one unit, that fact alone does not make it exclusive use common area. Follow this link to an article I prepared that analyzes the Court’s decision in the Dover Village case.
Because Civil Code Section 1364, as it relates to exclusive use common area, is so confusing, there is a bill being considered by the legislature, AB 637, that will amend Civil Code Section 4775 (the new number for Civil Code Section 1364 when the new Davis-Stirling Act takes effect January 1, 2014) to say that the owner maintains and the association repairs and replaces exclusive use common area (unless the CC&Rs otherwise state).
Determining what is exclusive use common area and who is responsible for the repair and replacement of same requires an analysis of the association’s CC&Rs and the Civil Code, just as the Court did in the Dover Village case referenced above. If there are clear definitions in the CC&Rs as to what is common area and what is exclusive use common area, those definitions control. And if the CC&Rs are not clear as to what is or what is not exclusive use common area, then Civil Code Section 1351(i) (in the Davis-Stirling Common Interest Development Act) provides:
"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.
If the CC&Rs define certain areas of the association as being restricted or for the use of one but not all units, and if those areas seem to fit the definition of exclusive use common area, then those areas are exclusive use common area even if the CC&Rs do not use the name “exclusive use common areas”.
If, however, the CC&Rs are unclear or do not define all of the development (except for the separate interests) in terms of common area and exclusive use common area, then the Davis-Stirling Common Interest Development Act (Civil Code Section 1351(i)(1)) will control. This section of the Davis-Stirling Act states that, in the absence of any contrary language in the CC&Rs, 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.
Be careful with defining something as being a “fixture” to make it exclusive use common area. As the Court in Dover Village explained, “interconnected sewer pipes cannot really be said to be the "fixtures" of any particular unit. A sewer system is a series of interconnected pipes which ultimately feed into one common line. Differentiating parts of that interconnected system is unreasonable. The portion of piping coming from one unit is no more affixed to that unit than it is to the sewer system and other pipes or piping within that system.” So, just because something is attached to the unit does not necessarily make it a fixture of that unit. And, what the Dover Court did not state is the fact that a waste pipe is not affixed to the unit; it is in and affixed to the common area.
Some pipes – for example, drain pipes exclusively servicing one unit and not connected to any other system of piping — might indeed come within the category, because they can be said to be, like shutters and window boxes, "designed to serve a single separate interest." But a piece of a system of interconnected sewer piping does not fit; it is literally, physically connected to every other piece of the system. Every unit's sewer pipes are a "fixture" of every other unit's sewer pipes.“
Once a determination is made as to what is common area and what is exclusive use common area, many board members, managers and attorneys have concluded that what is exclusive use common area is the unit owner’s repair and replacement responsibility. This is incorrect, as the Civil Code clearly states that unit owners only “maintain” their exclusive use common area.
Once the Civil Code is amended (see above) to clarify that the association is responsible for the repair and replacement of all of the common area including exclusive use common area, there will likely be fewer debates over what is or isn’t exclusive use common area. The fact is that if it is part of the common area, it is likely the association’s repair and replacement responsibility even if that element of the common area serves or services only one unit. That is the way condominiums are supposed to work.
David Swedelson is a community association legal expert. He represents associations and not individual owners. He can be contacted via email: firstname.lastname@example.org