The El Niño has struck and it has not been pleasant! Following heavy
rains and strong winds, my inbox was full with associations concerned
over the resulting damage and the delegation of maintenance responsibility
and potential liability. Don’t let California’s year-round
bright sunny weather lull you into ignorant bliss. El Niño is here
and if unprepared you may find yourself facing unpleasant surprises.
Fixing the Damage
With the stormy weather, came an abundance of fallen trees and tree branches,
leaking roofs, and severe landslides. The trees crushed cars, ruined roofs,
broke windows, destroyed patios, and were even fatal. People found roofing
shingles in their yards. Water invaded walls and flooded homes and parking
garages. And, landslides cause terrible damages from the onslaught of mud.
The questions received following the unfortunate events include: Who was
responsible for the tree, the roof, the landscaping? Now who is responsible
for all the damage to the car, the roof, the patio, the home? And, what
about the provision in the CC&Rs that states the association shall
not be liable for any damage to the owner’s property resulting from
that which the association is responsible to maintain, unless the association
While not always clear, the CC&Rs do provide the maintenance responsibilities
and will generally set forth the responsibilities in the event of damage.
The bigger issue is that of liability. Is the provision in the CC&Rs
that releases the association of all liability really enforceable? And,
does it actually work in practice?
Franklin v. Marie Antoinette Condominium Owners Association, Inc. provides a great example of this provision in action. A homeowner replaced
flooring in her unit, and it was later damaged by central plumbing, a
common area item that was maintained by the association. The association
had a provision limiting its liability for damage from water intrusion.
The court found the provision was enforceable. Thus, because (1) the association
was found not to be negligent and (2) the provision was found to be enforceable,
the association was not responsible for the damage to the flooring.
This provision essentially shifts the risk of loss and repair from the
association to the homeowner. If the association was negligent in its
maintenance responsibilities, however, the association cannot shift the
risk of loss and responsibility to repair the damage to the homeowner.
The court made an interesting point in justifying the enforcement of this
provision. It found:
By reducing the Association’s risk of liability, the condominium
owners have reduced their own risk. The condominium owners are,
after all, the ones who are assessed to pay for improvements, insurance
premiums, liability judgments not covered by insurance, and the like. Plaintiff is only one of many owners who collectively entered into the
contract (CC&Rs) with the Association. A reasonable and fair reduction
of the Association’s risk
which mutually benefits the condominium owners as a whole does not suddenly become violative of public policy upon non-negligent
infliction of property damage to an individual unit.
While plaintiff may bear the loss in this case, she may benefit in the next.
Thus, by limiting liability and shifting risks, the association is not
only protecting itself but also protecting the membership as whole. The
Franklin case informs us that these provisions are enforceable and can work to
the association’s benefit. Although, homeowners may, nonetheless,
contest the validity of such provisions.
Furthermore, when confronted with the above discussed situation, the association
should always tender the matter to its insurance agent, who is the appropriate
professional to ascertain if the association has insurance coverage for
particular circumstances at issue.
Let us not fear El Niño or stress over its damaging aftermath. Let’s
use this as an opportunity to remind ourselves that we need to be proactive.
Prevent the damage and avoid the phone call or email to your legal counsel
and/or insurance agent.
If your association does not already have a maintenance plan for both short-term
and long-term projects, one should be prepared and budgeted for accordingly.
Staying up to speed on all required maintenance will help prevent damage
when warm sunny California experiences poor weather or El Niño
takes a stroll through your backyard.
Talk with legal counsel about preparing a maintenance matrix. A matrix
helps both the board and the homeowners understand who is responsible
for what repairs, replacements, and maintenance. Sure, the CC&Rs set
forth the repair, replacement, and maintenance responsibilities for both
the association and the homeowners. But, these provisions are not always
clear to either party. The CC&Rs lack detail and can leave the association
and homeowners alike guessing as to who is responsible for what. Associations
may even flip flop from year to year in maintaining certain items because
of the deficiencies in the CC&Rs.
A maintenance matrix can resolve the ambiguity, fill in those blanks, and
answer the questions of who is responsible for the trellis, the doorbell,
the gutters, hardware and fixtures, landscaping in an exclusive use backyard
without fencing, plumbing, drains, etc.
Inform your members and take cost effective and efficient measures now
to prevent greater problems and costs in the future.
Franklin v. Marie Antoinette Condominium Owners Association, Inc. (1993) 19 Cal. App. 4th 824.
Id. 19 Cal. App. 4th at *833.