By David C. Swedelson, Esq.
Many planned development community associations have built into their CC&Rs the obligation of the association to maintain property owned by some and often not all of the owners. Sometimes, they are called “Association Maintenance Areas” or “Association Easement Areas”. Sometimes, there is no special name for the area, but the association’s CC&Rs specify that the association will maintain a slope area or landscape area that benefits the association or the owners, typically for aesthetic reasons. And sometimes, disputes erupt over just how far the association’s maintenance responsibilities extend.
Recently, one of these disputes ended up in the court of appeal. The court in the Starlight Ridge case indicated that the extent of the owner or association’s maintenance and repair responsibility is determined by the language of the CC&Rs and the intent of the developer who drafted the Governing Documents. So we can only rely on the Starlight Ridge case for how the court approached the issue, as each association’s CC&Rs may define the responsibility for these areas differently. For example, at one association we represent, we have been dealing with a dispute over whether the association or the owner is responsible for the repair of water and drain lines that are on the owners’ property, over which the association is required to provide certain maintenance. Sometimes, the CC&Rs are not all that clear and a legal interpretation is required. So, here is a summary of the Starlight Ridge case:
Hunter-Bloor is a homeowner in the common interest development governed by Starlight Ridge South Homeowners Association (“Association”). A dispute arose concerning the maintenance and repair responsibilities with respect to a V-ditch, a concrete drainage channel for storm water runoff drainage on a slope area, which runs through the back of a number of the lots within the development.
The Association’s CC&Rs designate “Landscape Maintenance Areas”, which are portions of each owner’s lot that are to be maintained by the Association. These Landscape Maintenance Areas are defined in the CC&Rs as “all plantings, planted trees, shrubs, irrigation systems, walls, sidewalks and other landscaping improvements described in Exhibit B [a metes and bounds description] which are to be maintained by the Association.” The Association’s CC&Rs also provide for the allocation of maintenance and repair duties between the owners and the Association. Pursuant to the CC&Rs, the Association is responsible for the maintenance of the Landscape Maintenance Areas, “including all improvements, facilities, landscaping and planting thereon” and the owners are required to maintain the exterior of the residences, including all exterior improvements. Additionally, the CC&Rs state that each owner “shall maintain, repair, and replace and keep free from debris or obstructions the drainage system and devices, if any, located on his Lot.”
The portion of the V-ditch that runs through Hunter-Bloor’s lot is entirely located within the Landscape Maintenance Area, and both the Association and Hunter-Bloor argued that the other party was responsible for its maintenance and repair. The Association argued that the V-ditch was a drainage system or device on the owner’s lot for which the owner was responsible. The homeowner contended that because the V-ditch on her lot was wholly within the Landscape Maintenance Area, the Association was responsible for its maintenance and repair.
In interpreting the CC&Rs, the Association argued that the responsibility of the owner to maintain the drainage system controlled, while the owner argued that the Association’s obligation to maintain the Landscape Maintenance Area controlled. When two contractual provisions are inconsistent, the more specific provision controls over the general provision, however in this case, each party argued that a different provision was more specific.
To resolve the conflict, the court attempted to give effect to the likely intentions of the developer at the time the CC&Rs were written, as well as the circumstances under which it was made and the subject matter that it treats. In the 20 years that the CC&Rs had been in effect, the Association had enforced the obligations of owners to maintain and repair drainage devices on their lots. The court also looked to the purpose of the Landscape Maintenance Areas, which are small areas bordering the entrances of the development and which serve an aesthetic purpose to which the V-ditch is entirely unrelated. Most of the V-ditch lies within the owner-maintained portion of individual lots, and the Association has never collected assessments for the maintenance or repair of the V-ditch.
The court held that although the plain language of the CC&Rs could support either interpretation, the circumstances indicate that the owner is responsible for maintenance and repair of the V-ditch. The trial court’s judgment in favor of Hunter-Bloor was reversed, and the Association’s motion for summary judgment was granted.
When confronted with these types of disputes, associations need to make the same type of analysis. Does the association budget for the repair of V-ditches or drainage pipes, etc.? Was the intent of the developer to make the association responsible for the aesthetics of that maintenance area? And if it is as confusing to the board and management as it was in the Starlight Ridge case, confer with legal counsel for an interpretation.
David Swedelson is a senior and founding partner at SwedelsonGottlieb, Community Association Attorneys. David can be contacted at firstname.lastname@example.org.