Monday, November 5, 2012


Generally, in a condominium project, the Homeowners Association (“Association”) is responsible for the maintenance of the roof, exterior and common areas of the project. On the other hand, a condominium owner (“Owner”) is responsible for the maintenance of the unit and the exclusive use common areas. Unfortunately, maintenance obligations can sometimes be uncertain.

In the case of Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123, a dispute arose between an Owner and the Association over the maintenance of a leaky sewer pipe located two feet beneath the concrete slab underlying a condominium unit. The issue in this case turned on whether the leaky sewer pipe was “Exclusive Use Common Area” for which the Owner was responsible, or “Common Area” for which the Association was responsible.

A four-inch cast iron sewage pipe beneath the Owner’s condominium had deteriorated over time, and eventually, the leak seeped up into the floors and carpet of the Owner’s unit and the unit of another. The Association was notified, and it called out a plumber to make repairs. The repairs were extensive, costing about $15,000. In order to make the repairs, the plumber needed to cut through the Owner’s floor, jack hammer the concrete slab underneath, and trench out and replace approximately 50 feet of sewer pipe that connected the Owner’s condominium with the main service line.

The Association sent a letter to the Owner stating that because the sewer pipe exclusively serviced the Owner’s condominium, it was his responsibility to maintain and repair the sewer pipe. The letter directed the Owner to pay the $15,000 plus additional repair costs. The Owner refused to pay, so the Association filed a lawsuit against the Owner.

Agreeing with the trial court, the Court of Appeal held that, as a matter of law under both the CC&Rs and the Davis-Stirling Common Interest Development Act (the “Davis-Stirling Act”) (Civil Code Section 1350 et seq.), the sewer pipe under the condominium unit is “common area” to be maintained and repaired by the Association.

The Court first noted that only two exclusive use common areas are expressly mentioned in the CC&R's: Patio and garage areas. The court found that the most natural reading of the CC&R's is that sewer lines are not "exclusive use common areas appurtenant" because by expressly stating patio and garage areas come within the category, the CC&R's impliedly state that sewer lines do not.

Turning to the Davis-Stirling Act, the Court stated that an Association is normally responsible for repairs to "common area," but an Owner is responsible for repairs to any exclusive use common area appurtenant to the condominium unit (Civil Code Section 1364(a)). “Exclusive use common area” is defined as “a portion of the common areas designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests and which is or will be appurtenant to the unit (Civil Code section 1351(i)). Except as provided in the CC&amp;Rs, shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patio, exterior doors, doorframes, and hardware incident thereto, screens and windows <em>or other fixtures designed to serve a unit</em>, but located outside the boundaries of the unit, are exclusive use common areas allocated exclusively to that unit. (Civil Code Section 1351(i)(1)).

The Association argued that under the Davis-Stirling Act, the pipes are exclusive use common area because they come within the definition of <em>“other fixtures” designed to serve a unit</em> in Civil Code Section 1351(i)(1). The Court rejected that argument. The Court stated that “interconnected sewer pipes cannot really be said to be the "fixtures" of any particular unit” because a sewer system is a series of interconnected pipes which ultimately feed into one common line.

As shown in the Dover Village case, when a condominium Owner and an Association are trying to determine maintenance responsibility, a careful examination of both the Association’s governing documents and the Davis-Stirling Act is required.


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