The requirements for operating and maintaining “public pools” have been subject to various regulatory changes in recent years. Those changes have impacted pools within private homeowners associations (HOAs), as the California Legislature and Department of Health have defined the term “public pools” to include pools located within private HOAs and residential developments. (Health & Safety Code §§ 116049.1(a), 116064.2(a)(4)(B); 22 CCR § 65503(a)(9).) The more notable changes include those which mandate (1) new parameters for water characteristics, (2) strict monitoring of pool facilities and requirements for written records, (3) enforcement of specific safety and first aid equipment, (4) requirements that newly constructed public pool enclosures have at least one keyless exit and self closing latches, and (5) the imposition of health restrictions for employees or pool users. Some of these changes are discussed below.
Daily Testing
The most significant change is that which requires HOAs with twenty-five (25) or more separate interests to test pool and spa water chemical composition and temperature on a daily basis, and to keep a daily log of the testing. (22 CCR § 65523(a).) Daily testing may be performed “using a properly calibrated automatic chemical monitoring and control system” if allowed by local enforcing authorities. (22 CCR § 65523(a).) For HOAs with fewer than 25 separate interests, testing must be performed and documented “at least two times per week and at intervals no greater than four days apart.” (Health & Safety Code § 116048(a).)
Safety Equipment
Other notable changes deal with the installation/maintenance of safety and first aid equipment. For example, that equipment must include a 12’ minimum length rescue pole and a 17” minimum (exterior diameter) life ring with an attached throw rope having a minimum of 3/16” diameter. (22 CCR § 65540(a).)
Health Restrictions
Previous regulations prohibited persons with diarrhea from using the pool. Now, pool access must be denied to any person, including pool monitors, that have symptoms “such as a cough, cold sore, or nasal or ear discharge or when wearing bandages.” (22 CCR § 65541(b).)
Pool Enclosures; Gates & Doors
Finally, there are specific requirements in Section 3119B of the California Building Code for at least one gate/door into the pool enclosure to allow for egress, without a key, for emergency purposes. If all gates/doors allow for keyless exit, no special signage is necessary, otherwise the keyless exit(s) must have signage stating “EMERGENCY EXIT” in at least 4” high lettering.
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 association’s development. (Civ. Code § 4145(a).) Civil Code Section 4145(b) lists the following components as exclusive use common area, subject to any contrary provisions in an association’s CC&Rs:
“…shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, doorframes, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common area allocated exclusively to that separate interest.” (Civ. Code § 4145(b).)
Modifying Provisions Contained in CC&Rs The classification of the above components as exclusive use common area assumes that there are no contrary provisions in an association’s CC&Rs. If such contrary provisions exist, the CC&R provisions control. (Civ. Code § 4145(b).) Modern CC&Rs and condominium plans for condominium projects often contain provisions which clearly define what areas/components are exclusive use common area, as well as the owners maintenance obligations for those areas.
Maintained by Owner
The provisions of an association’s CC&Rs typically outline the scope of an owner’s maintenance responsibilities for the exclusive use common area appurtenant to his/her unit. In the event that such provisions are absent or ambiguous, Civil Code Section 4775 makes the owner responsible for maintaining the exclusive use common area.
“(a) Unless otherwise provided in the declaration of a common interest development…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).)
“Designed to Serve a Single Separate Interest” Civil Code Section 4145 states in pertinent part that “fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common area allocated exclusively to that separate interest.” (Civ. Code § 4145(b). (Italics added).) However, in the event that a particular fixture/component is not explicitly defined as exclusive use common area within the CC&Rs or condominium plan, the association may not solely rely on whether it believes that fixture/component “is designed to serve a single separate interest” when making the determination that the fixture/component is in fact exclusive use common area to be maintained by the owner. (See Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123.)
Legislation Affecting Repair & Replacement of Exclusive Use Common Area
The maintenance responsibilities under Civil Code Section 4775 are somewhat ambiguous with regard to exclusive use common area; Section 4775 fails to state whether an owner is additionally responsible for the “repair and replacement” of exclusive use common area, not simply “maintenance.” HOA industry practice has held that it is the responsibility of the association to repair or replace exclusive use common area. Legislation that was signed into law on September 18, 2014 will resolve the ambiguity by codifying industry practice. Effective January 1, 2017, that legislation, AB 968 (Gordon), will amend Section 4775 to state that, unless otherwise provided for in the CC&Rs, the owner is required to maintain exclusive use common area, and the association is responsible to repair and replace exclusive use common area.
Exclusive Use Common Area Damage Caused by a Member
Where damage to exclusive use common area is caused by the acts of the owner, the owner’s guest or tenant, any repair expenses incurred by the association may be recoverable through levying a reimbursement assessment against the owner. (See “Reimbursement & Compliance Assessments.”)
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.)
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:
“…unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area.” (Civ. Code § 4775(a)(1).)
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.”)
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, while the association is responsible for repairing or replacing the exclusive use common area.
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)(2). )
Clarifies repair and replacement responsibilities under Civil Code Section 4775 with regard to exclusive use common area.
Current Status: Chaptered
FindHOALaw Quick Summary:
Unless otherwise provided for in an association’s CC&Rs, Civil Code Section 4775 establishes the default apportionment of common area maintenance and repair responsibilities of an association versus those of the individual owners. Section 4775 is somewhat ambiguous with regard to exclusive use common area; Section 4775 fails to state whether an owner is responsible for the “repair and replacement” of exclusive use common area, not simply “maintenance.” Industry practice has held that the responsibility to repair or replace exclusive use common area is the association’s. AB 968 (Gordon) seeks to codify industry practice by amending Section 4775 to state that, unless otherwise provided for in the CC&Rs, the owner is required to maintain exclusive use common area, and the association is responsible to repair and replace exclusive use common area.
*UPDATE: AB 968 was signed into law on September 18, 2014. Its changes to the law will become effective on January 1, 2017.
