Q&A: Can an HOA palm off responsibility for maintaining common-area greenery?
Question: We own a detached single-family home in a common interest development and are in a difficult situation with the board. Our water bills have been going way up over the years and we just discovered that the association’s shrubs outside our property walls are being watered from our home water lines. Apparently this has been the case since we moved into this house 12 years ago. After finding this out, we cut off the water supply, but then the HOA sent us a notice of violation demanding that we replant all the dying shrubbery in that part of the common area and continue to maintain it.
I later spoke to several owners who said the association maintains shrubs and grass outside their property walls. The association’s manager said that some time ago this is how all the owners decided to handle common-area watering outside owner property walls. But he also said some homeowners upgrade, water and maintain the greenery outside their units in exchange for a monetary concession that reduces their monthly HOA fees.
It’s obviously unfair that the association maintains other properties or offers concessions to some owners while our water was being used without any compensation. We are not sure how to proceed but believe that the HOA owes us a refund. Where do we start?
Answer: For most issues involving a homeowners association, the best place to start is with your governing documents. If association owners agreed to a specific method of maintaining common areas, then the agreement should be reflected in the covenants, conditions and restrictions (CC&Rs), or in some other documents. Look at bylaws, rules and regulations, and even documents that may have been recorded on your title after your purchase.
Still, common area maintenance is one of a board’s primary functions, so it would be unusual for you to be responsible for that obligation. If your development’s governing documents do not contain a contrary definition, then state law defines what are your responsibilities and it does not include maintenance of common-area greenery.
The “common area” in your association is the entire common interest development except the “separate interests,” according to California Civil Code section 4095. Those separate interests are namely the homes, as well as “exclusive use common areas” that are designated for an owner’s own private use and enjoyment.
Unless modified by your governing documents, your exclusive-use common-area obligations extend to shutters, awnings or window boxes on your property; your doorsteps, stoop, porches, balconies, patios, exterior doors and door frames; and related hardware, such as well as the screens and windows connected to the other listed items, according to Civil Code section 4145.
Note that state law does not designate shrubs or grass outside your property walls as an “exclusive use common area.” So if there is no such designation in your association’s own governing documents, then you are not obligated to maintain them and the association should not have used your water for that “common” purpose.
But, to be certain, comb through your escrow documents and title report. Look for language that would detail this additional obligation. Pay particular attention to any maps or property surveys detailing the boundaries of your property. If there is no greenery maintenance obligation detailed in those documents, and if that portion of land is not part of your property’s survey map, you may be entitled to a refund for the money that the association cost you by using your water line.
In an attempt to collect the money owed to you and to remove the notice of violation and related fines, write the board and ask for an internal-dispute resolution meeting. You should also demand the board replant all of the dying shrubbery.
Present copies of the water bills and give the board an invoice asking for the dollar amount to be paid within 30 days. If the board does not pay the amount invoiced, send a second copy as a courtesy with an additional 10 days to pay.
If the board still does not pay, and the amount owed to you is under the $10,000 monetary limit for Small Claims Court, you can file an action against the association. Generally the statute of limitations on this type of claim is three years, but you may be able to extend the period of recovery if you can prove that it reasonably took longer to discover the injury or that the association was actively concealing its use of your water.
Your board is typically obligated by law to maintain all common areas. That duty cannot be delegated to individual owners without amending the association’s governing documents. It is improper for the board to expect owners to take over its obligations and then to grant concessions to some in exchange.
If the board wants to hire these titleholders to participate in the maintenance of association property, then any such proposal needs to be properly considered by the directors and vetted with complete transparency to the rest of the owners.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.
