Waterproofing maintence or repair

MaryL20 (California)
Posts: 5

Posted:

After our California SB326 inspections we will need waterproofing on 10 units with 2 decks front and back. We have a total of 40 units. Our Maintenance Matrix and CC&R’s states that homeowner is responsible for deck & patio maintenance and HOA is responsible for structure repair & replace. The problem is the CC&R’s do not define maintenance for the homeowner. Three of our four board members are deck owners. They have decided that deck maintenance does not include waterproofing for them and the HOA should pay for waterproofing. How should the other 30 units members proceed. We do not want to pay for their deck waterproofing.

SheliaH (Indiana)
Posts: 6,964

Posted:

Do these people realize that if they want the HOA to pay for waterproofing, this will apply to everyone – meaning you’ll have to budget for it and then adjust the amount of assessments (they will need to increase to cover this?) Not to mention having to schedule all this and people complaining that date won’t work for them because, or they have to lock up the Rottweiler who hangs out there, and all that stuff. People don’t think very much these days, do they?

I’m told wood deck maintenance consists of things like things like annual cleaning and periodic staining every few years. If you’re talking about boards rotting out, that would affect the structure and be a HOA responsibility. Maybe these people should read a few articles talking about deck maintenance and see how often waterproofing is listed as a structure repair and maintenance item.

Then tell them to run the numbers for everyone - what would it cost to do this for everyone? If the homeowners are ok with paying this as part of their assessments fine, if not, sit down. If they balk, you and your neighbors could then rally together and do a special meeting to recall them and replace them with other folks (one may have to be you). Another option, consider adjusting the CCRs to define what maintenance means.

You may also be able to do this with a board resolution because they flesh out the CCRs and Bylaws (but aren’t allowed to override them). Read your documents to see if the board has that authority, otherwise, you’ll have to convince your neighbors to adjust the CCRs accordingly.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

First, please recognize that there are many aspects of condo HOAs where not every exclusive use common area is exactly the same and will cost exactly the same to repair/replace. My multi-story 200+ unit condo bldg., for instance, has 300 balconies that're about 100 sf. each. About 85% of our condos have only the one balcony. BUT, there are a few condos with much larger decks or balconies--a couple have 500 sf decks. And others have more than one balcony/patio/deck. A few have 3!

Like yours, Mary, our CC&Rs make the HOA fund the repair/replacement of these area. All owners chip equal amounts into reserves for these as a part of their dues. Whether it's a 100sf balcony or a 350sf one, the HOA pays to repair/replace. Similarly, we have about a dozen townhomes each with their own roof, which are common areas in my HOA. Our two towers each have a roof. When it or the TH roofs need repair or replace, the funds come from reserves to which all owners contribute equally.

In your situation, Mary, the optics for the board don't look so great. Other owners think they're taking advantage of being board members by a wanting the whole HOA pay for their required waterproofing. And this boils down to the word "maintenance." Start here with a website compiled by a respected CA HOA law firm: https://www.davis-stirling.com/HOME/E/Exclusive-Use-Maintenance.

"Maintenance Defined. Generically, maintaining something means to preserve it in its original condition so as to prolong its life." The way I see it, and I'm NOT in any legal profession, waterproofing is maintenance. it preserves the balcony surface and gives it a longer life. Another term for waterproofing might be "preventative maintenance."

Assuming your HOA's deck are exclusive use common area, Here's more from CA Civil Code about HOAs:

"Starting January 1, 2017 Civil Code § 4775(a)(3) makes associations responsible for repairing and replacing exclusive use common areas unless the governing document state otherwise. Homeowners continue to be responsible for maintaining their exclusive use areas. Unfortunately, the statute does not define what it means by "maintain."

Civil Code § 4775. HOA and Owner Maintenance Responsibilities.
(a)(1) Except as provided in paragraph (3), unless otherwise provided in the declaration ... the association is responsible for repairing, replacing, and maintaining the common area.
(2) Unless otherwise provided in the declaration ... the owner of each separate interest [condo unit] is responsible for repairing, replacing, and maintaining that separate interest.  
(3) Unless otherwise provided in the declaration, the owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest and the association is responsible for repairing and replacing the exclusive use common area."

My understanding of Civ. 4775 is that (3) applies and owners should each pay for waterproofing their decks. Some may disagree with my thinking here. But, assuming it seems OK, how do you persuade the Board to vote that owners are responsible for waterproofing their decks?

I'd start by speaking up at the next regular Board meeting during open forum. Your and other should state that waterproofing IS maintenance and your CC&Rs require Owners to fund any maintenance. But make sure this maintenance requirement include exclusive us common areas, which is what decks usually are.

Please ask questions if this was too long or confusing.