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March 27, 2006
Deck Maintenance, Repair and Replacement - Who is Responsible?
As you can imagine, I get questions everyday, some I can put a generic answer to, and some I cannot. Here's one:
We live in a penthouse condo in a large complex in California. The decks are also roofing over 3 units below so they are in that grey zone of "exclusive use common area". We are willing to accept SOME responsibility for renewing the deck surface when it becomes necessary, and of course 100% responsibility for damage to a unit below us ( if we do not keep up our own deck surfacing), but some penthouse owners think the entire HOA should pay for a new roof/deck.
I have had more than one inquiry along these lines. Common Questions:
Question: Our docs now say that the HOA fixes the structure part of the deck but amendments have been proposed that would make the penthouse deck owners responsible for half the costs. The HOA has been paying for the structural repairs/replacements to date. Can the Board just arbitrarily start charging the penthouse owners for half their decks when others have been replaced at no cost to the owner?
Answer: When a person buys into a common interest development (shared costs and amenities, with CC&Rs), they are charged with the knowledge that the responsibilities or use restrictions may change by less than 100% approval. Sometimes people think they cannot be changed without their approval. Not the case.
Question: We are way outnumbered by the owners who do not have decks so they can easily vote this responsibility over to us by amending the documents. Is this fair? Can we legally stall the vote on the changes that would affect us?
Answer: Again, if you buy into a CID there is a valid legal argument that you knew or should have known that the documents could be changed that contain the responsibilities. From your perspective, this seems unfair because you bought in expecting these items would be maintained, and they are part of the building, and expensive to fix. It is true also that the fact some serve as roofs for other unit patios rolls into the responsibility for roofs. There may be a challenge open to the wording in the amendment - does it change all pertinent provisions? or create a conflict with provisions that did not get changed? Do your documents prohibit changing the maintenance scheme without getting the mortgagees (lenders) vote as well as the owners?
But look at the other side. All of the other owners may be frustrated at having to pay for the penthouse decks when they get no benefit.
There is one case I know of where the owners sought court approval of an amendment when more than half of the voting power approved it but the approval percentage did not reach what was required by the CC&Rs. The case is called "Blue Lagoon". This process of asking for the court to approve an amendment when an association cannot get the supermajority percent approval required by the CC&Rs is blessed in Civil Code Section 1356. However, using this process, I believe a Judge would be hard pressed to help the Association if the voting resulted in something that was unfair, just because one group outnumbered another.
This same kind of thing happens in situations where there is the need for a seawall and those that do not live by the waters edge feel they would not benefit from it so they do not want to pay as much as those who would be benefited. Or a situation where the condos in the back of the development are more susceptible to crime and are asking for a security wall to be constructed, lights to be installed, etc., that will not be of any perceived benefit to those living in the front by a well-lit street. Or a situation where there is one Lot of open space at the end of a development and a slide results threatening two or three houses in the development but not the others. Those who do not live next to the slide do not want to pay. Should they? What happens when you have a pool and some owners do not want to use it and therefore do not want to pay? Must they? (Generally, this is the only "yes" I can give here witha strong likelilood that there is usually nothing in the governing documents that contradicts me).
You need a knowledgeable attorney to advise on either side of these issues - such as how to craft measures to deal with what is fair. How to enroll the members when all should pay, and how to protect those who feel that they are at a disadvantage and could end up with the whole burden for fixing something. There are many things to consider, and the big question is, who decides what is fair and what is reasonable under the circumstances. I do not have a generic answer for this, so I will take the lawyers way out ... It depends ...............................
Posted by Beth Grimm at March 27, 2006 6:12 PM