The HOA Board Quarterly Summer 2019 Issue #21 | Page 4

MY DRYER VENT IS CLOGGED! WHO IS RESPONSIBLE? by Theresa M. Filicia, Esq. and Timothy P. Flanagan, Esq. At one point or another, an Association will be faced with an Owner who fails to take responsibility for the maintenance or repair of a specific individual Unit component which could result in a serious safety hazard. If a dryer vent stops working, should the Association or the Owner fix it? What about sprinkler heads? HVAC lines? If the question of responsibility remains unanswered, and the clogged dryer vent goes unresolved, the likelihood of a safety hazard exponentially increases, leading both Owners and Associations down the path of damage, injury and liability. So how can this be avoided? Associations should first look to their current CC&R provisions that govern the maintenance and repair requirements for both Owners and the Association. For example, the governing documents may have a Maintenance Responsibility Chart attached to the CC&RS which dictate “that it is the Owner’s responsibility to maintain and repair the Utility Facilities and equipment which exclusively service the Unit.” Or the CC&Rs may simply provide a standard for maintenance such as “each owner shall maintain the elements of the property for which he or she is responsible in a condition which does not impair the value or desirability of other units or lots.” If the governing documents remain silent on the issue, Civil Code section 4775 provides that an Association is generally responsible for the maintenance, repair and replacement of common areas. In contrast, Owners are responsible for the maintenance, repair and replacement of their unit or lot, and for the cleanliness and maintenance of their exclusive use common area. Whatever the verbiage, determination of whether an Owner has a specific duty to maintain or repair the Unit component at issue should be the initial step towards a resolution. If it is ultimately determined that the individual Owner is responsible for the maintenance of the clogged dryer vent, what action can the Association take to ensure that the Owner is acting on this responsibility? One option would be to adopt a policy requiring the Association to notify the Owners on a yearly basis, or on some other set schedule, of the Owners’ obligation to maintain the HVAC lines, dryer ducts, and/or sprinkler heads and the safety hazards associated with failure to properly maintain such components. Notification can be in the form of a letter and should include any deadlines for the Owners to complete the maintenance and cleaning of the specified unit components at the Owners’ expense. The notice should require Owners to provide proof of the maintenance to the Association, via a receipt or other means. And finally, the notice to Owners should indicate that if an Owner fails to timely maintain the vents/HVAC lines/ Sprinklers, the Association will cause such work to be completed and the Owner will be responsible for the costs. Another option available to incentivize Owners to timely comply with the maintenance requirements would be to find a service provider that offers group discounts. The Association can provide Owners with a set of dates, or service window, in which the maintenance must be done each year with the designated 4 | The HOA Board Quarterly | Issue #21 | Summer 2019 service provider at a discounted rate. The Association can allow the Owner to opt out of this specified service provider if they provide proof of a professional cleaning (not self-cleaning) and require this cleaning to be done at least once in whatever time period the Association deems necessary. Those who do not get the specified Unit components cleaned risk getting a violation fine as is laid out within the Association’s governing documents. Finally, the Association can use the procedural remedies available within the CC&Rs, rules and regulations. For example, if the Owner fails to maintain the dryer ducts, the Association must give written notice to the Owner of the violation and provide said Owner the opportunity to remedy the violation. This notice must specifically state the work of maintenance or repair which the Association finds to be required and request that the Owner act within a set period of time. The letter may also state that if the Owner does not comply, the Association shall cause such work to be completed at the Owner’s expense. Additionally, CC&Rs generally contain fine schedules or monetary penalty schemes that dictate how much an Association can fine an Owner depending on the offense or violation. If the Owner fails to comply and forces the Association to provide the maintenance or repair itself, an Association can impose these monetary fines upon an Owner as a means of reimbursing the association for costs incurred. To do so, the Association must hold a hearing and notify the violating Owner in writing at least ten (10) days prior to the meeting. This notification must contain the date, time, place of meeting, nature of the allegations for which the Owner may be disciplined and a statement that the Owner has a right to attend and address the board. Likewise, an Owner must be notified within fifteen (15) days of the decision regarding the imposition of discipline or sanctions. It is an Association’s role to diligently ensure the safety and well being of all Owners through clarification and enforcement of its CC&RS, rules and regulations. Don’t let a dryer vent fire be the reason for your inquiry into the responsibilities of Owners and the Association. Be proactive today by working with Owners to facilitate regular maintenance and repair. Theresa M. Filicia, Esq. and Timothy P. Flanagan, Esq. are partners at Berding\Weil, LLP in San Diego. They assist and serve as counsel for many common interest developments throughout Southern California. Contributed by Theresa M. Filicia, Esq. and Timothy P. Flanagan, Esq. Berding|Weil, LLP • 858.625.3900 [email protected] • [email protected]