Reader Questions - Who Fixes the Pipe?

Dear Kelly,

Who is responsible for repair of the water supply lines inside building walls between units of the same stack?

J.R., Los Angeles

Dear J.R,

You asked the $64 question! Ascertaining responsibility for plumbing or other building components is a common legal task which should be handled by your HOA’s legal counsel.

Plumbing pipes in condominiums (in which the owner typically owns a block of airspace called “unit”) are normally found in the “common area” (the shared “everything else” other than the units).

Unfortunately, developer-drafted CC&R’s, even the best ones, rarely provide adequate guidance to distinguish HOA responsibilities from individual homeowner duties. This Department of Real Estate and its regulations do not require this from developers, so associations often later turn to their legal counsel to amend their documents and add clarity on maintenance and repair issues.

I looked briefly at your CC&Rs (since they are filed with the County Recorder, they are public documents) and your HOA’s are from 1985. I normally start by checking them first, to see if they allocate responsibility.

The next guidance comes from the Common Interest Development Act. Civil Code 1364(a), which next year will be 4775(a) when the law moves locations, says that unless the governing documents say otherwise, the HOA takes care of maintaining and repairing common area, but if it is “Exclusive Use Common Area,” the member maintains it.

So, if your HOA governing documents don’t mention plumbing, repairs are most likely the HOA’s responsibility, because it is common area (again, a conclusive answer needs to come from your HOA counsel).

To determine if it is a member maintenance issue under 1364(a), we next check to see if the area is defined as “exclusive use”. Such a definition might be found in the CC&Rs or the Condominium Plan, but if the documents don’t say anything, the CID Act at 1351(i) provides a definition of “exclusive use” areas. In addition to porches, balconies and patios, that definition also includes a catchall phrase – “fixtures designed to serve a single separate interest, but located outside the boundaries” of the unit.

For years, many attorneys (me included) believed that a section of piping serving only one unit was exclusive use common area under the catchall definition of 1351(i). However, in 2010 that all changed with a case called “Dover Village v. Jennison”, regarding a smaller Newport Beach HOA.

The dispute regarded the repair responsibility for a leaking sewer drain pipe underneath Jennison’s patio. The governing documents did not define exclusive use common area, and the HOA argued because the pipe “served a single separate interest” it therefore was Jennison’s responsibility.

The appellate court ruling made two interesting statements: First, that under Civil 1364(a), the homeowner maintains AND repairs exclusive use (the statute doesn’t say “repair”); and second, in the absence of anything contrary in the governing documents, the pipe cannot be considered in isolation, as it is a part of a larger integrated system, and so is not exclusive use common area under the catchall definition.

The Dover Village ruling underscores the need for HOAs to have documents which clearly define exclusive use areas as well as delineate WHO repairs WHAT.

This is complicated subject, so don’t get too upset with your board if they get it wrong, and ask your HOA attorney.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.