Maintence defined

California requires wood deck repair. Our Maintenance Matrix says that Home Owners are responsible for Deck and Patio Maintenance and Repair. Three of our four board members have Decks they have decided that Water proofing is not maintenance but repair they do not want to pay for waterproofing. They want the HOA to pay for waterproofing. This will require a special assessment as we do not have money in reserves. We have a total of 40 units 10 have decks. Can the board make this decision to define waterproofing as repair & not maintenance? Should this be up to the community to vote?

Good citation by Aidyl that I'd forgotten about!

Otherwise, Mary, please review the discussion of your 2/12 5:50p post. I think posters agreed that the owner are responsible for the decks in air HOA. Unclear to me is who's responsible for any supports--columns, piers, or something else that supports the decks.

A strong indication that the HOA is NOT responsible is that the decks are not in your reserve study.

You're a board member, right? And you're outnumbered by the 3 other board members who all have decks--almost 1/3rd of all decks in your HOA. They have a genuine "conflict of interest." I stick with my thinking on this. Get. Your. HOA. Attorney's. Opinion.

No, I. do not think Owners may vote on this.

As others noted, see what your CC&Rs say about the decks' classification (unit, common element, or exclusive use common element) and unit owner responsibilities. This should answer the question. Also, the association has to be careful about doing any work on any item that is classified as part of the unit because of liability reasons - although that's probably not the case with decks.

FWIW, if replacement of these items is association responsibility, you could maybe make a case for paying for the waterproofing since it theoretically reduces reserve expenses over time.

IMHO, "repair" implies there has been some damage that must be corrected, and "waterproofing" is preventative maintenance. My community's CC&Rs say that unit owners maintain, repair, and replace their decks and patios. So if someone chose not to waterproof their deck, they'll pay the price down the road, not the association.

I see that Elle agrees with my above and my previous advice in Mary's previous 2/12 5:50p post.

Also, with Cathy, waterproofing is maintenance because it keeps whatever it's protecting in its original good condition. That's what maintenance is. I may have offered this in the OP's post of 2/12 5:50p.

But, Mary's o.p. states their Matrix says owners are responsible for BOTH maintenance & repair of decks. "...Owners are responsible for Deck and Patio Maintenance and Repair."

Say, Mary, is your Matrix an Exhibit in your CC&Rs? And it's recorded with your CC&Rs?

To be clear, Mary, you wrote that your Matrix says: "...Owners are responsible for Deck and Patio Maintenance and Repair." This means, no matter what the Board majority (self-servingly) terms "maintenance" or "repair," the owers are responsible. How do you see this otherwise, Elle?

Now a contractor would only apply waterproofing over an already-damage free surface. Therefore, it is maintenance--to protect and MAINTAIN the surface on which it's applied or installed --depending on the product.

IF, by chance, the Board majority is talking about flashing at the "seams" where the wall joins the flooring surface, there MIGHT have a different approach to take.

Now, it's best you provide the exact wording in the Marie, Mary, and also add if, as I asked above, this Matrix is a part of your CC&Rs and is recorded as such with your county.

Yes, let's wait for Mary's replies with exact wording in the Matrix, and whether it's a part of the CC&Rs. Ours is CC&Rs "Exhibit B." To the latter question, more and more HOAs in Calif. (and maybe elsewhere) over the past several years, are adding a Maintenance Matrix to their CC&Rs, which are often too vague about who is responsible for exactly what tasks, especially relating to exclusive use common areas like balconies, patios, decks, especially in condo buildings.

I think it's also advised in the Davis-stirling citation above.

We added our MM in '22 when we restated our CC&Rs. There are 17 "items" listed and each is checked O or A (Assoc.). The columns are Clean, Maintain Repair, Replace, Paint, Resurface & Repave. It IS a PART of the CC&Rs so has the same authority. UNLIKE what Mary's apparently say, ours make cleaning & maintaining, balconies, O and repair & replace, A.

Paint is A, BUT with the note: "O/A (the Association may paint as part of any building paint project, but in between such project(s) the owners shall paint as
necessary)

Say, Mary, today's Davis-stirling.com newsletter has quite a lot about deck inspections, and here is a sample question to the HOA attorney who writes this newsletter:

Question: "Few Balconies. Only a few units in our building have balconies. Is this still the association's responsibility to inspect and repair the balconies, or would that be the owner's responsibility?”
Response: “If your development is composed of condominiums and at least three the units have balconies, they must be inspected and repaired by the association. (Civ. Code § 5551)"

BUT, Civ. 5551 does not say the Assoc. is responsible for all condo projects:

Civ 5551 “(b) …every nine years, the board of …a condominium project shall cause a …inspection to be conducted by a licensed structural engineer or architect of a…sample of exterior elevated elements for which the association has maintenance or repair responsibility….”

“…(c) Prior to conducting the first visual inspection, the inspector shall generate a random list …of each type of exterior elevated element. The list shall include all exterior elevated elements for which the association has maintenance or repair responsibility….”

“…(j)(2) The continued and ongoing maintenance and repair of the load-bearing components and associated waterproofing systems …. shall be the responsibility of the association as required by the association's governing documents.”

It appears that if you understand your Matrix correctly, and if it IS a part of your CC&Rs, owners are responsible for their exclusive use common area decks. Please, please, Mary, read the entire 5551, which I heavily edited for brevity. Read the d definitions. Also completely read Aidyl's useful citation way above. More important, get your attorney's advice. For one thing among others-- it's not clear to me that IF the HOA is NOT responsible, if the inspection is even required by Civ. 5551

Back to waterproofing for a sec. I'll assume that the decks are already waterproofed and one or more parts of the waterproofing system needs "repair." Still, from what you wrote, the owners are obligated to make the repair.

For Mary & interested others: https://www.davis-stirling.com/HOME/E/Elevated-Structure-Balcony-Inspections.

A very detailed discussion of this topic with pics of various kinds of balconies/decks.

But, Elle, because Mary states in this thread that the CC&Rs' Matrix requires owners to "repair" their decks, how can a Board majority vote that, instead, the HOA is obligated?? A major job of the Board is to enforce the governing docs. And yes, I keep hoping Mary will clarify the wording and doc much better.

More, how can this Board majority assert with a straight collective face that the entire HOA membership of 40 pay for repairs to 10 decks--3 of which belong to directors-- serves the best interests of the HOA per the Business Judgment Rule?

https://www.davis-stirling.com/HOME/D/Director-Conflicts-of-Interest

"Regardless of whether he has a material financial interest, a director ‘may not make decisions for the association that benefit their own interests at the expense of the association and its members.’ Raven's Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783. A director who breaches the basic fiduciary duties are liable to the Association. (Id.) Where a director finds himself in a position to vote on a matter in which he has a personal interest, he should be recused.”

"3.  Just & Reasonable. Even if the director makes full disclosure and avoids influencing the vote, the transaction must be fair and reasonable as to the association at the time it is authorized, approved or ratified. (Corp. Code § 310; Corp. Code § 5233; Corp. Code § 7233 .)"

I also do not think Corp. 7233 is quite the appropriate citation in Mary's case.

My observations:

-- This forum does not know whether this maintenance matrix is in fact in the CC&Rs.

-- If the matrix is in the CC&Rs, then it is not entirely consistent with what MaryL20 posted in the other thread.

-- Either way (either not in the CCRs; or in the CCRs), I figure the board is going to claim that the wording of the covenant is what matters; the board has the lawful discretionary right to deem the waterproofing a "repair"; and so per the covenant (the board declares) the HOA must pay for the "repair."I think the board, being all-powerful at the moment, would say simply that (1) the covenant (not the matrix) says what it says; and (2) absent a conflict of interests, the board has a discretionary right to decide what is "maintenance" and what is a "repair," as long as the board is "reasonable" in the exercise of this discretion.

I actually think it is not unreasonable to deem the waterproofing a repair. I would not say this. I think waterproofing is "maintenance." But I also would not say want to go to court over this particular point.

All of this is relevant, but I do not think it is dispositive here. Corp Code 7233 aside, whether the directors in the OP's case are violating their fiduciary duty is not something that is clear cut IMO. Why? Because the covenant says what it says, and because IMO the board has some discretion in determining what is maintenance and what is a "repair."
The "just (or fair) and reasonable" part of the above was very much on my mind when I responded to DeanJ a little while ago. But per 7233, and by my reading, it does not kick in until certain conditions are met.Then quote what you think is.

I saw Civ Code 5350 and do not believe it applies.

This is just my opinion. If you post something to change my mind, I will say so. Else my opinion stands.

Obviously I am pretty sick of several of you repeatedly characterizing statements of mine (carefully qualified with "IMO" and the like) as my asserting a fact.

I feel Corp Code 7233 applies, but as I posted earlier and as I wrote Dean, I believe the board could push back. (Plus Dean or anyone is certainly entitled to their opinion that a "transaction" is not taking place.) If the board pushes back on a claim the board is violating Corp Code 7233, then other steps are needed.

All I am saying is Corp Code 7233 is where I would start, as far as violations of statutes and covenants are concerned.