Reader Questions - Should We Worry About Upcoming Change in law?

Dear Mr. Richardson,
I have read your article on exclusive use common areas and don’t get whether in a planned development the decks and balconies are in this category. [In our association] some homes have decks, some have balconies, some have chimneys, some have both and some have neither. I understand that in January of next year Davis-Stirling will change to make EUCAs the responsibility of the HOA unless the CC&Rs say otherwise. Our HOA is having a contentious debate about an amendment to our CC&Rs that our board president is pushing and will result in the HOA being responsible for everything but doors and windows. This will result in increasing our dues substantially, special assessments and possibly a bank loan to cover all these repairs. That is why I am motivated to understand this issue and any help you can provide will be appreciated.
R.G., San Francisco

Dear R.G.,

Your planned development probably does not have exclusive use common areas, but it depends on how the subdivider set up your community. To determine if the balconies or decks are common area or part of a lot, your association legal counsel can check the subdivision map, which should answer that question as it indicates the boundaries of the lots. Your association may not have a copy of the subdivision map, but it is easy to obtain with the help of your friendly local title insurance company. Planned developments typically will not have exclusive use common area, which more typically is found in condominium projects.

Exclusive use common areas are defined by Civil Code 4145, unless the association governing documents define such areas. Under current Civil 4775, unless the governing documents say otherwise, the association maintains and repairs common area, and the individual member maintains “their” exclusive use areas. This left a question – who has responsibility for repairing exclusive use areas? Mainstream HOA attorneys have been saying for many years that the conclusion is that the HOA repairs exclusive use areas, since they are still common area. In January 2017, the law changes and closes that gap in the law. In 2014 the Executive Council of Homeowners sponsored AB 968, which confirms what HOA lawyers said for years – that the HOA repairs exclusive use common areas. The bill was non-controversial, and was passed. However, despite that the change to the law was quite modest, the law will not become effective until two years later – January 1, 2017.

The bottom line is that the change in the law will not affect most HOAs, because most associations either have specific governing document provisions allocating repair responsibilities or the HOA already handles exclusive use area repairs.

Some anti-HOA groups decried AB 968 as a big negative change for HOAs, but in so saying, they betray their ignorance – AB 968, when implemented, won’t change what most associations already are doing. Chances are, in fact, that the change in the law next year won’t be even noticed by most – because most are already allocating repair responsibility the same as will the new Civil 4775.

Remember that if the repair to exclusive use common area is due to homeowner abuse or neglect, the HOA is still going to expect the homeowner to pay.

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®.