One of the more difficult and confusing issues that boards and association management often have to deal with is determining who is responsible for the maintenance and repair of common area plumbing, ventilation and other utility components, especially those that serve only one unit. Even attorneys sometimes get it wrong and believe that merely because the pipe, duct or wiring serves only one unit, the affected owner is responsible for same. Just because a common area component serves or benefits only one unit does not by itself make that component that owner’s repair and/or replacement responsibility.
Recently, I was contacted by one of my oldest friends who told me that his parents’ condominium association was refusing to repair the heating and air conditioning ducts that served his parents’ unit. It turns out that his mother had been suffering from some allergy issues, and contacted a company to clean the ducts. The duct cleaning company inspected the ducts and advised that they were in disrepair and could not be cleaned until they were repaired. In fact, there were some gaps in the ducts that were allowing the stale (and, as it turned out, rat-infested) attic air to leak into the duct and then to the interior of the unit. The condominium building was built in the 1970s, and being over 35 years old, the ducts were in need of some repair.
At first, the board of directors advised my friend’s parents that the ducts were part of the unit and therefore not the association’s responsibility. They were trying to defer responsibility.
I then wrote a letter to the board of directors, as a favor to my old friend (as our firm does not typically represent homeowners), pointing out that the CC&Rs and Condominium Plan for this association defined the unit as all of the air space bordered by the perimeter walls, ceilings and floor, as condominium units are typically defined. Their documents specifically stated that everything else (including the ducts which were specifically referenced in the Condominium Plan as not being part of the unit) was common area, which is also typical.
The association turned my letter over to an attorney who, I happened to know, does not have much experience representing community associations. The lawyer’s response showed this lack of experience, as she stated that since the CC&Rs did not specifically say that the ducts were part of the common area, then they must be part of the unit. Really?
I responded by pointing out the references in the governing documents to what was defined as being the common area. I pointed out that what was not part of the unit was clearly common area and therefore the association’s maintenance and repair responsibility.
In response, the association’s attorney stated that since the ducts served only my friend’s parents’ unit, the ducts were considered exclusive use common area and thus the unit owner was responsible for the maintenance and repair of those items that are exclusive use common area. Really?
You may be asking yourself, why was the association’s attorney wrong if the ducts only served that unit? The answer is simple if you refer to the California Civil Code. Civil Code Section 1351 defines exclusive use common areas as meaning that portion of the common area “designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests…” That Code section goes on to specifically define certain components, such as shutters, awnings, doorsteps, and others, as being exclusive use common area. But the important point is that this code section makes it clear that unless the declaration states that a specific component is exclusive use common area, that component (in this case a duct) does not become exclusive use common area merely because it serves only one unit.
To put it differently, a common area component does not become exclusive use common area of the owner of the appurtenant unit merely because it serves only that unit. If that were the case, then all of the plumbing lines, which would include the sewer waste lines, the electrical wiring, and other components of the common area systems and facilities that we typically define as being the common area would become exclusive use common area. Since all the plumbing and electrical lines, as well as other utility facilities and similar components serving one unit, are part of a system that serves all of the units, it is just not appropriate to have homeowners ripping open common area walls and making repairs to common area components, unless the association’s CC&Rs otherwise provide.
Even if the ducts were considered exclusive use common area, that would still not make the ducts the repair or replacement responsibility of the unit owner. Civil Code Section 1364 states that owners are only required to maintain their units and their exclusive use common area, not repair same. If the ducts were considered exclusive use common area, I would agree that my friend’s parents are responsible for cleaning the ducts (and they were handling that responsibility and that is how they discovered that the ducts were broken). However, even if this were the case, neither the association’s governing documents nor the California Civil Code provide that the owners are responsible for repairing the ducts. Therefore, even if the ducts were considered exclusive use common area, all that my friend’s parents would be required to do is keep them maintained.
Many associations grapple with these types of issues. One way to eliminate the debate over who is responsible for maintaining, repairing or replacing various building components would be to develop a maintenance and repair checklist. SwedelsonGottlieb is available to prepare such a list, which not only lists all of the major components in the development, but also identifies who is responsible for maintenance, repair and replacement and cites the section of the governing documents or California law that supports that position. If your association would like to have a professionally prepared maintenance and repair checklist, contact either David Swedelson or Sandra Gottlieb by calling 1-800-372-2207 or emailing me at firstname.lastname@example.org. Also, feel free to email me if you have any comments.