Those of us who live within the confines of a homeowners association know and understand the burdens and hurdles of changing and improving our property. We have to get plans for the improvement, submit them to the architectural committee, and then begin construction, installation, and transformation. But, at the end of all the hoops, loops, bumps, and work, we finally get what we wish for! Life is great with new and improved property, right?
Lewis and Patricia Mork probably thought so after they got approval to install a planter and irrigation system, and later a pool.1 However, this installation resulted in water diversion to the neighbor’s property, which ultimately caused mold and damage to the neighboring unit.2 The neighbors, of course, sued the Morks for the continued water intrusion and damage.3 The neighbors also sued the association because the area in which the improvements had been installed was limited common area, which according to the CC&Rs was to be maintained by the association.4
Things started looking up for the Morks! It wasn’t their responsibility, it was the association’s. The association had to maintain the area and repair the drainage problem, right? Wrong. The CC&Rs had an exception to the limited common area maintenance responsibility5 that stated if a homeowner made an improvement to this area, the association was no longer responsible for its maintenance.6 This effectively placed the responsibility for the water drainage back on the Morks, who had done nothing to stop or alter the water flow and were found liable for the damage and nuisance they had caused.
This provision is an important one, and associations should consider having similar provisions. The association would normally have maintained the Morks’ limited common areas, but the CC&Rs’ provision was able to remove such responsibility when the Morks decided to voluntarily improve the property.7 This provision keeps the association’s costs of maintenance relatively the same and imposes liability and the increased cost of maintenance that comes with improvements on the homeowner. This is a great cost saving and protective measure associations can take when homeowners want to improve areas that the association would generally maintain.