Is Your Association Meeting Its Responsibilities Re Maintenance of the Common Area?

As the governing body for a common interest development, the homeowners association is vested with the responsibility for maintenance of the association’s common area. This responsibility is specifically described in the association’s governing documents (i.e. declaration and/or CC&Rs) which contain provisions that grant the authority to, and impose the duty and responsibility on, the association’s governing body to maintain and repair the common area and its facilities. Unless otherwise provided in the association’s governing documents, the governing body is not obligated to maintain those areas that are designated “exclusive-use” common area.

A homeowners association may be found liable for damages that are caused to the owner of a separate interest in the development as a result of the failure to maintain the common area or to repair a condition in the common area that caused the damage to the owner’s separate property. Accordingly, each of the owners in a homeowners association can institute a court action against the association for damages that they have suffered due to the association’s failure to maintain the common area. Homeowners who are forced to file an action against the association to enforce the obligation to maintain or make repairs to the common area or to seek recovery of damages for injury to their separate interest are also typically entitled to recover their costs and attorney fees under both contract (provisions in the governing documents that allow for same) and state statutes.

The association’s duty to maintain the common area also extends to third parties who are not owners of separate interests in the development. The general duty owed to third persons is a duty to maintain the premises in a safe condition. A failure to properly maintain the common area can result in liability to third persons for injuries caused by dangerous conditions in the common area.

In performing its responsibilities for maintaining and repairing, the association’s governing body is authorized to spend the association’s funds for the materials and services that are necessary to complete the maintenance or repair. The governing body’s decisions as to the particular means for discharging its maintenance or repair obligations, or the cost for same, are protected by the “business judgment” rule. This general authority regarding maintenance and repairs may be subject to some limitations contained in the governing documents that necessitate approval by the homeowners (i.e. expenditures that will exceed a maximum amount permitted by the governing documents or state laws).

If damage has been caused to the association’s common area by a homeowner or a third person, the association has the responsibility for taking appropriate action to recover those damages. Assuming the association’s governing documents provide for the imposition of liens by the association, if an owner fails to reimburse the association for costs incurred for the repair of damage to the common areas or facilities caused by the member or the member’s guests, the association by record a lien on the owner’s property that is enforceable by a sale of the owner’s interest in accordance with applicable state law. In order to fulfill its responsibility of taking appropriate action to recover for damage caused by others, the association has standing to institute, defend, settle, or intervene in litigation, arbitration, mediation, or other administrative proceedings, without participation by individual owners of the common interest development, in matters pertaining to:

• Enforcement of the governing instruments;
• Damage to the common areas;
• Damage to the separate interests that the association is obligated to maintain or repair; or
• Damage to the separate interests that arise out of, or are integrally related to, damage to the common areas or separate interests that the association is obligated to maintain or repair.