Are Developers Required to Provide "Maintenance Manuals" to New Associations?

A Question from a Reader regarding California's Title 7:

Mr. Berding

Re your article in Community Associations Network ("Maintenance Manuals for New Associations--How Much Maintenance is Enough?"), I found it quite informative. A question:

"Title 7 of Division 2 of the California Civil Code ("Title 7" which, before its enactment, was called "SB 800") creates new standards and special statutory maintenance requirements for residential common interest developments constructed after 2003. These requirements, ... can require compliance with a project "Maintenance Manual"..." 


Does such a manual exist, and if so, how would I go about getting a copy? 


Thank you.

Robert J. Burns, P.E.,R.S.
Burns Associates-Engineers

 Bob, I'm glad you found the article useful.

The two provisions of Title 7 of California's Civil Code which relate to maintenance schedules are the following:

CC 907: A homeowner is obligated to follow all reasonable maintenance obligations and schedules communicated in writing to the homeowner by the builder and product manufacturers, as well as commonly accepted maintenance practices. A failure by a homeowner to follow these obligations, schedules, and practices may subject the homeowner to the affirmative defenses contained in Section 944.

CC 945.5 c): To the extent it is caused by the homeowner or his or her agent, employee, general contractor, subcontractor, independent contractor, or consultant by virtue of their failure to follow the builder's or manufacturer's recommendations, or commonly accepted homeowner maintenance obligations. In order to rely upon this defense as it relates to a builder's recommended maintenance schedule, the builder shall show that the homeowner had written notice of these schedules and recommendations and that the recommendations and schedules were reasonable at the time they were issued.

The statutes refer to "recommendations" "maintenance schedules" and "schedules" in no particular order. The phrase "maintenance manual" is not used. However, these statutory provisions have obviously been considered by builders when they provide maintenance "manuals" or "schedules" for specific projects. There is no standardized maintenance manual of which we are aware. The manuals we discussed in our article were specific to projects that we have been retained to review.

These "maintenance manuals" and other similar "maintenance schedules" are intended by builders to put an association on notice that they must maintain the project properly to avoid problems. This is, of course, good advice. But it also provides the developer a defense that can be used in a construction defect claim. A good expert, however, can separate problems in the design or original construction from those caused by lack of proper maintenance and whether or not the maintenance required by the "manual" was reasonable.

The New Reality: Is Your Condo Project a Candidate for Sale as a Single Parcel?

     The future of many common interest developments resembles the present-day reality of condominium conversions that are often born with serious maintenance issues and a cash deficit. If the association cannot pay for essential maintenance, the value of the units will drop, similar to the recession-caused loss of value today, but they will fail to sell notwithstanding lower asking prices, and the owners, many now under water, will stop paying their assessments. When the association gets to the point where it cannot pay for essential services or do critical maintenance, then the local municipality will have to decide if the units remain habitable. If the answer is “no,” condemnation may be next step...

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Beyond The Fourth Stage: A Florida Failure

Banks win delay in demolition of abandoned Fort Lauderdale condo complex

By Scott Wyman September 16, 2010 06:37 PM

Big banking won out Thursday over a Fort Lauderdale neighborhood’s hopes that the city would order the demolition of an abandoned condo complex that’s become a haven for crime.

Debris is strewn across the 58-unit complex along the north fork of the New River. The doors and windows have been stripped away. Vandals have destroyed walls and ripped out copper wiring and plumbing. The city has been paying for metal shutters to keep away squatters.

City inspectors declared the New River Condominium to be a health and fire hazard, but banks won two delays over the summer to prevent its demolition. Residents of the River Gardens/Sweeting Estates neighborhood had hoped Thursday would bring an end to the delay, but instead a city board gave banks another 32 days to try to come up with a plan to salvage the property.

The extension came even though the banks offered the board no evidence of any plans being drawn up. They also had failed to follow through on promises to pay for the shutters – which are costing Fort Lauderdale taxpayers $6,000 a month.

“This is an unsafe structure and there has been delay after delay and continuance after continuance,” neighborhood activist Pamela Adams said.

The neighborhood, along with city building inspectors, began pressing in June to take the drastic step of razing the five buildings just off Sistrunk Boulevard. The complex had been converted to condos in 2005, but then came the recession and now almost every unit is either owned by a bank or in the process of foreclosure.

There’s been no running water for a year. The condo association is defunct. Police officers refer to the area as The Hole because it’s where suspects on the run often disappear. Nearby homeowners say drug-dealing and prostitution is rampant.

Bank lawyers told the city’s Unsafe Structures Board that they are committed to trying to find a way to redevelop the property and understand the city’s patience is at an end.

“I can’t believe it is so unsafe that it must be demolished immediately,” said Justin Hekkanen, a lawyer for Bank of America, which has an interest in about two-thirds of the units.

Members of the city board said the delay was almost certainly the last. Although some of the board said the banks had had enough time to act, others feared that demolition would guarantee the land sit vacant for years as a legal fight ensues over what would happen next.

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Upstairs, Downstairs

Strategies for Dealing with Condo Noise Disputes

By Paul W. Windust, Esq.

Noise disputes among owners can be one of the most troublesome problems community associations and their managers face. Not only can they be expensive to resolve, they can cause community unrest and bad feelings. However, if a community association acts quickly and assertively, it may be able to diffuse the dispute, or at least keep the association out of court.

Noise issues often involve a downstairs owner’s complaints of noise coming from the unit above. This frequently involves floor coverings, or the lack of them. The typical dispute has a common set of facts. An upstairs unit owner decides to upgrade by removing existing carpeting and installing hardwood or some other hard-surface flooring in its place. This upgrade occurs without application or notice to the architectural control committee. The first time the board becomes aware of the problem is when a complaint is made by the owner of the unit below. The usual complaints include increased noise from the upper unit--walking, voices, music, or television sounds.

Not all noise complaints relate to floor coverings. Some buildings lack sufficient soundproofing between adjacent units allowing greater than normal sound transmission. Floor structures can lack sufficient rigidity, causing them to “creak” or “groan” when walked on. But the vast majority of such claims come from a downstairs unit owner reporting elevated noise levels after an upgrade to hard-surface floors. Floor coverings are part of a unit owner’s separate interest. They are not common area and the association will not usually have direct responsibility for their performance as it would with a defective structural element, for example. However, the governing documents may include floor covering provisions as part of the architectural guidelines that the association is charged to enforce. Also, the association can be responsible under the governing documents for abating a “nuisance” regardless of whether the nuisance involves a separate or common interest.

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Editor's note: Paul Windust is a Partner at Berding|Weil. He advises community associations on legal issues and litigation.

Hello Mr Berding,

I'm writing this email to you as a call for help with advice. I read your article on dealing with condo noise complaints. I find myself in a problem with some new neighbors who live below me. They are using their condo like a music studio and I'm noticing the music is on all day long even while I'm probably at work in the daytime. I may have made the mistake by showing my disapproval one night with a baseball bat to my floor and i made it very clear i was trying to sleep , at that time it was around 1am. They lowered it but i could still hear a faint bass, of course when i woke up i could still hear it if i pay close attention to it. So here i am a week later and i find myself stuck in a condo that used to be nice and quiet after the last 6 years Ive been here. My building isn't the best of places, it may also have a bad reputation. I live in Bridgeport,CT. What do you suggest for me. My parents are owners of my condo and i pay the mortgage and common charges, when my credit gets better they can turn over the condo to me. I hear so many negative things about the condo board(association) and i know sometimes the police wants nothing to do with it. This problem started just 7 days ago and i feel like I'm going to erupt. Ive been going to the gym to keep my blood pressure from getting high. By your article, you seem to understand my situation, "noise is in the ear of the beholder". I know its not just me but i can see how no one will understand. Thank you.

Paul A
Bridgeport,CT.

Paul, 

As the article states, noise issues are very pervasive in condo living, and are sometimes the most difficult problem to solve. First, I'm not a Connecticut attorney, so if this continues, I advise you to seek the counsel of an attorney in Bridgeport who specializes in condominium law. Your local chapter of the Community Associations Institute (CAI) can help with a referral. 

Condominiums are not usually built with noise problems in mind. Their structure is not much different than an apartment house, in fact, your building may have started life that way. So when you live under or over someone else in a condominium, the chances of your daily activities being heard by your neighbors is pretty likely when it is above normal volume. 

Having said that, no one is permitted to become a "nuisance" to anyone else. What qualifies as a nuisance is defined in each state's law, but most states have provisions against nuisances and permit an owner to apply to the police or the local courts to abate (end) the nuisance. In most states, high levels of noise for extended periods usually qualifies as a nuisance. Again, consult with a local attorney on the best avenue for assistance.

Your community association governing documents (CC&Rs, Bylaws, etc) probably have some provisions relating to nuisances, but whether they require the association to act upon it depends on the documents. The governing documents may also provide a separate basis for abating the nuisance which you can enforce yourself. If you consult a Bridgeport attorney specializing in community association law, he or she can review those documents and advise you on your rights and enforcement options.

Tyler

Traps for the Unwary

What you don’t know about your CCRs, your Budget, and your Buildings

    The responsibility for building maintenance and repairs in a community association most often falls to the Board of Directors of the association as assisted by the community association manager. It’s an awesome responsibility in that
the economic well-being of the owners
 is often co-extensive with the health
of the building. But maintaining any building properly requires a very sophisticated understanding of building components. Maintaining a community association building also requires a thorough understanding
of the association’s governing and budget documents.

But buildings, budgets and governing documents are not always what
they seem—they can contain traps for the unwary. Community associations are prisoners of their budgets. Nothing can be repaired without adequate funding. Proper funding, in turn, is dependent upon a proper analysis of the maintenance and repair requirements of a particular building. If the conditions of the building are not properly reflected in the budget, the association will not be able to adequately maintain the project.

The “traps” in buildings can be placed there accidently or intentionally.
The “traps” in governing documents are almost always intentional. In
either case it is essential for boards and managers to be aware of them
and to know how to avoid the pitfalls they present...

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Left Holding the (Sand) Bag

Who will Pay for the Damage Caused by Rising Sea Levels?

It Could be Your Homeowners Association!

The San Jose Mercury News (June 13, 2010): “From Antioch to North Richmond to Redwood City, a slowly rising Bay could endanger the properties of as many as 270,000 Bay Area residents and cause some $56.5 billion in damage by the end of the century unless measures are taken to protect them, scientists warn. But surprisingly, few cities are taking action”
____________________

“November 5, 2008…In the event of projected flooding sandbags are available at the Benicia Corporation Yard. Some assistance may be available but residents should bring shovels and plan to fill and load the bags themselves.” (City of Benicia website)

The chance of flooding in cities in and around San Francisco Bay is not just speculation. It has happened many times in the past and it will happen again and again if sea levels continue to rise or a “perfect” storm joins with normal high tides. It’s easy to see why. Take a look at one of the several interactive devices used to illustrate the first areas around the bay that will flood when the sea rises. It should come as no surprise that they are the same locations where the bay was originally filled to create housing and commercial developments. These low-lying areas—Redwood Shores, Alameda, Vallejo, Alviso and many others—were bay bottom and tidelands just a few decades ago. Now there are thousands of homes. The flood danger is obvious.

And, thousands of new homes are projected for a dozen or more major developments being proposed for additional tidelands and other low-lying locations around the bay:

“At least 12 major developments with as many as 56,000 new homes are planned at the edge of the Bay over the next 5 to 20 years…many are in low-lying areas experts say are potentially vulnerable to flooding associated with long-term sea level rise. Some cities and counties have strategies to deal with that problem, others do not.” (San Jose Mercury News)

But what is different today from developments built, say, three or more decades ago is that many of these new developments will be built as community associations and many of the expensive engineered facilities necessary to protect these developments from storms, rising tides and sea levels will not be owned by cities or the state, but instead will be the responsibility of homeowners...

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The Great Foreclosure Debate, Part IV

Lenders' Reluctance to Foreclose is Crippling Community Associations

The Contra Costa Times, May 25, 2010: “Tens of thousands of homes in the East Bay are in foreclosure or are owned by banks. Some sit empty; a few are boarded up. Beyond the squatters and over-grown yards blighting neighborhoods, the glut of bank-owned homes means years of decline in the property taxes on which cities, schools and the state of California depend.”

     Sound familiar? Of course it does, because the same economic forces are wreaking havoc with the budgets of community associations. The article continues:

     “Foreclosed houses do not obtain lower property tax assessments until banks sell them. So tax revenue will keep falling until banks sell all the houses they end up with, creating a long-term lower tax base.” Basically this means that no one will know the full extent of this economic crisis until all of those foreclosed homes are re-assessed at dramatically lower values resulting in dramatically lower property taxes being paid over a long term.

     But there is another result as well. Property taxes upon which local governments are dependent may not be re-assessed until the banks sell the properties, but homes in community associations that are in foreclosure for non-payment of the monthly mortgage most likely are also delinquent in their homeowner assessments. Banks don’t start paying these assessments until they actually complete foreclosure and obtain title.

     The article states: “In the East Bay, banks own more than 10,000 homes, only a fraction of which are listed for sale. Another 20,000 are in foreclosure headed toward bank ownership.” But “headed toward bank ownership” is not bank ownership, and until the foreclosure is completed, the banks pay nothing toward the costs of maintaining the home which community associations must continue to pay. A healthy fraction of those 20,000 homes are in community associations and while the bank foreclosure process slowly continues, no assessments are being paid.

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