Reader Questions - It’s My Balcony and My Vine, Right?

Hello Mr. Richardson,

I own a two bedroom condo with a balcony. We live in the area where a lot of smoke from a busy boulevard, so the balcony needs to be washed often. We put tile on the balcony. Now the HOA is painting the balconies and will remove tile. Do we have any rights to fight not to remove tile? I would really appreciate your response.

Sincerely,

L.M., San Francisco

Dear L.M.,

Your balcony is most likely exclusive use common area (if the governing documents do not say so, Civil Code 4145(b) does), but it is still common area under HOA authority. Adding tile is modifying the common area. The tile, depending on how it was installed and what is underneath, could cause long-term damage to the balcony membrane. Water damage could cause dry rot, which could cause your balcony structure to be compromised.

You may want to have a contractor advise you and the HOA regarding whether or not the tile adversely affects underlying common area. If the HOA allows you to keep the tile, you may be asked to enter into a common area alteration agreement, in which you take responsibility for the tile and any problems it might cause in the future.

Any time a homeowner wishes to add something to common area or change it in any way, the best approach is to check first with the association – not afterward.

Best regards,
Kelly

Dear Mr. Richardson,

I received the draft of the minutes regarding a vine that has grown on the stucco wall of my and my neighbor’s home, stating that the vine has to be removed, and any damage will be the owner’s responsibility.

In my neighbor’s opinion it looks good, she wants to keep it growing and will assume responsibility for paint damage. I like it too. I can admit that the vine can chip the paint and stucco when pulled from the wall.

My question is regarding the authority of the board to mandate the removal. Are the outside walls the domain of the HOA?

Thank you,

M.R., Monrovia

Dear M.R.,

If your association is a condominium, most likely that exterior wall is common area, and therefore likely to be the association’s repair and maintenance responsibility (your HOA legal counsel can check this by reviewing the governing documents). If the association is a planned development, the exterior wall probably falls under the association architectural control. Since the HOA is referencing damage responsibility, I assume it is a condominium.

Condominiums association architectural policies should address vines on buildings, because vines attached to the building surface can damage that surface. It is most likely within the association’s responsibility and authority to protect the exterior building surface. However, sometimes associations will permit owners to keep an alteration, so long as they take full responsibility for the alteration. Perhaps the board would allow you and your neighbor to keep the vines while taking full financial responsibility for damage to the stucco. That agreement should be recorded on your condominium units, so later owners are notified of the ongoing agreement with the HOA.

Be careful, you may get what you wish for, and then discover that stucco damage is a significant expense.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.