Everything that is located within an association’s development except for the “separate interests” (the units or lots owned by the association’s individual members) constitutes common area. (Civ. Code § 4095(a).) One of the primary responsibilities of an association is to maintain, repair and replace the common area. 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 common area maintenance 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).)

Board Duty to Inspect Common Area
Upholding an association’s common area maintenance responsibilities places a duty on the board of directors to inspect the common areas at least once every three (3) years and to prepare a reserve study. (Civ. Code § 5550; See also “Reserve Study.”) The reserve study is used 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.”)

Methods of Maintenance & Judicial Deference
In the case of Lamden v. La Jolla Shores Clubdominium HOA (1999) 21 Cal.4th 249, the California Supreme Court adopted a rule known as the “Rule of Judicial Deference.” The Rule of Judicial Deference generally requires courts to defer to maintenance decisions made by HOA boards even if a reasonable person would have acted differently in the same situation:

“Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise. Thus, we adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association’s corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors.” (Lamden, at 253.)

The justification for such deference is premised upon “the relative competence, over that of courts, possessed by owners and directors of common interest developments to make the detailed and peculiar economic decisions necessary in the maintenance of those developments.” (Lamden, at 270-271.) The Rule of Judicial Deference is intended to “minimiz[e] the likelihood of unproductive litigation” over the discretionary maintenance decisions made by the board, and to help “foster stability, certainty and predictability in the governance and management of common interest developments.” (Lamden, at 271.)

Deference May Not Extend to a Failure to Investigate & Address Maintenance Problems
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 (Italics original).)

Deference May Not Extend to Board’s Interpretation of Association Maintenance Responsibilities
Judicial deference may not extend to the ways in which the board interprets the scope of the association’s maintenance responsibilities under its CC&Rs. In Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123, the association argued that the determination made by its board as to whether a portion of sewer line was exclusive use common area to be maintained by the unit owner (and thus, not common area to be maintained by the association) was a decision committed to the board’s discretion and thus entitled to judicial deference. The court disagreed with the association, noting that “[t]here is an obvious difference between a legal issue over who precisely has the responsibility for a sewer line and how a board should go about making a repair that is clearly within its responsibility. But we know of no provision in the Davis-Stirling Act or the CC&Rs that makes the Association or its board the ultimate judge of legal issues affecting the development.” (Dover, at 130.)

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.”)

Standard of Maintenance Controlled by CC&Rs
The standard of maintenance may be controlled by language within an association’s CC&Rs (e.g., the common areas must be maintained in “a first class condition”). An association’s failure to perform maintenance in accordance with those standards may constitute a breach of contract by the association. (See Sands v. Walnut Gardens Condominium Ass’n Inc. (2019) 35 Cal.App.5th 174.)

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