An “exclusive use common area” is defined as a common area that an owner has the exclusive right to use. Common examples of such a space include balconies, patios and parking spaces. Dating back to the Davis-Stirling Act of 1985, this has been a topic of disagreement for some associations, owners and attorneys. Specifically the responsibility of repair and replacement of such areas has been called into question. To understand why there has been such debate, lets take a look at the current legislation.
Civil Code Section 4775 currently states that “unless otherwise provided in the CC&Rs, a community association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area. The homeowner of each separate interest is responsible for maintaining their separate interest (their unit or home) and any exclusive use appurtenant (attached or next to) their separate interest.”
So we can see right away that responsibility of maintenance, repair and replacement falls squarely on the associations shoulders. But, it goes on to exclude exclusive common areas, for which owners are responsible for maintenance. Here’s the problem… what about repairs and replacement? It stands to reason that, since not specifically mentioned, this responsibility defaults back to the common area definition. Most industry experts have subscribed to this line of thinking, which places responsibility of maintenance with the owner but repair and replacement with the association.
This new legislation states, once and for all, that the association is responsible for repairing and/or replacing the exclusive use common area.
Over the years, many managers, board members and even attorneys have come up with their own interpretations and have assigned responsibility to homeowners. It goes without saying that they were not happy to see this new legislation, which is sure to create more obligations for the associations. This is why the new legislation will not go into effect until January 1. This will allow such associations to get themselves and their owners ready for this change.