Maintenance Responsibilities (Generally)

As discussed below, the maintenance responsibilities of an association as compared to those of its individual members (the owners of property within the association) depend primarily on whether the item or component to be maintained is classified as common area, exclusive use common area, or is included within a member’s “separate interest” (the real property owned exclusively by the member).

Common Area Maintenance
One of the primary responsibilities of an association is to maintain, repair and replace the common area improvements located throughout the association’s development. Those responsibilities are typically outlined within the provisions of an association’s declaration (CC&Rs). In the event that such provisions are absent or ambiguous, Civil Code Section 4775 establishes an association’s default maintenance, repair, and replacement responsibilities:

“(a) Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.” (Civ. Code § 4775(a).)

Upholding an association’s common area maintenance, repair, and replacement responsibilities places duties on the association’s board of directors to:

  • Inspect the common areas at least once every three (3) years and to prepare a reserve study in order to determine the amount of reserve funds that should be set aside for the maintenance and repair of major components which the association is obligated to maintain and which have a remaining useful life of less than thirty (30) years. (Civ. Code § 5550; See also “Reserve Study.”)
  • Investigate maintenance problems and take action to address them. While the board is granted deference by the courts in determining how the common areas are to be maintained, an association may be held liable for its failure to investigate maintenance problems and to take reasonable action:

“The judicial deference doctrine does not shield an association from liability for ignoring problems; instead it protects the Association’s good faith decisions to maintain and repair common areas….the essence of an association’s duty to maintain and repair is a duty to act based on reasoned decision making.” (Affan v. Portofino Cove HOA (2010) 189 Cal.App.4th 930,942.)

Common Area Damaged Caused by a Member
Where damage to common area is caused by the acts of a member, the member’s guest or tenant, any repair expenses incurred by the association may be recoverable through levying a reimbursement assessment against the member. (See “Reimbursement & Compliance Assessments.”)

**For more information, see “Common Area Maintenance.”

Exclusive Use Common Area Maintenance
A subset of common area is “exclusive use common area” (aka “restricted common area”). Exclusive use common area is a portion of common area designated by the CC&Rs for the exclusive use of one or more, but fewer than all, of the owners within the development. (Civ. Code § 4145(a).) Exclusive use common areas are found primarily within condominium projects (i.e., patios, balconies, porches, window boxes, etc.). The maintenance, repair, and replacement responsibilities for exclusive use common areas are typically controlled by the provisions of an association’s CC&Rs and/or condominium plan. Where those provisions are absent or ambiguous, the provisions of Civil Code Section 4775 generally allocate the maintenance responsibilities for exclusive use common areas to the individual unit owners.

**For more information, see “Exclusive Use Common Area Maintenance.”

Separate Interest Maintenance
The real property within an association’s development that is owned exclusively by a member is referred to as the member’s “separate interest.” The types of separate interests within a particular development are based upon the form of the development itself. For example, in a Planned Unit Development (or “PUD”), a member’s separate interest includes an individually owned lot (or parcel), as well as the residential structures and other improvements located on the lot. (Civ. Code § 4185(a)(3).) In a condominium project, a member’s separate interest is a “unit” that consists of a block of airspace bounded by the interior, unfinished surfaces of the unit’s perimeter walls, floors and ceilings. (Civ. Code §§ 4185(a)(2), 4125; See also “Airspace Condominium Units.”) Whether any particular component or improvement is included within a member’s separate interest may also be controlled by the provisions of the association’s CC&Rs and/or condominium plan.

Unless otherwise provided in the CC&Rs, members bear the maintenance responsibilities for their respective separate interests. (Civ. Code § 4775(a). )


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