#259 – Whose Pipes Are Those?

By Kelly G. Richardson, Esq.

 

Hi Kelly,

I hope all is well. Thank you for your great HOA articles.

What is the definition of internal installations of the unit? Are pipes in the wall considered internal installations of the unit? My take is internal means inside; so inside the unit. Can you please help me understand what internal installations of the unit mean?

Thank you very much. Best regards, E.S., Hermosa Beach

 

Dear. E.S.:

I am assuming your association is a condominium, in which it is important to define common area and exclusive use common area.  Determining which piping is homeowner or association responsibility is a very common point of contention, and can require review of the condominium plan (a recorded document by which the condominiums were created), CC&Rs, and Civil Code.

To sort this out, one would first look at the association condominium plan.  Is “unit” defined as a block of airspace surrounded by the unfinished walls, ceilings and floors?  If so, then piping within the airspace of the unit (such as sink plumbing traps or toilet angle stops) would normally be part of the “unit.”

If the piping is outside the airspace of the unit, unless the documents say differently, it is common area, per Civil Code 4095.  The association maintains and repairs common area, per Civil 4775(a)(1), unless the CC&Rs say otherwise.  Exclusive use area is treated differently, in that the association repairs it but the owner maintains it (again, unless the CC&Rs say otherwise), per 4775(a)(3). Most associations’ original CC&Rs do not contain much of a definition of exclusive use common area, so associations then rely upon the default definition of “exclusive use common area” found in Civil Code 4145(b). That definition is broad, but does not specifically mention piping.

The interpretation of the law and the governing documents to determine the nature of piping and maintenance allocation is best handled by the HOA’s attorney.

Many association attorneys in past years interpreted Civil Code 4145(b) such that a water supply or water drain pipe outside the unit, but serving only that unit, was exclusive use common area and so the homeowner had to maintain it. This approach was rejected in the 2010 appellate decision of Dover Village v. Jennison.  In that case, the CC&Rs said nothing about pipes or drains, and the HOA took the position that a clogged patio drain pipe, if it drained only one patio, was exclusive use common area and therefore the homeowner’s maintenance responsibility.  The appellate ruling rejected that interpretation, saying that the piping was an integrated system and that one segment could not be separated out from the rest.  However, the court in interpreting the statute specifically noted that the governing documents were silent on the subject.  Since Civil 4775 allows allocation by the CC&Rs of maintenance and repair responsibility for exclusive use areas differently than the statute’s default allocation, association CC&Rs could define such a pipe as exclusive use.

Many associations find that the original developer-supplied governing documents do not adequately deal with the specific needs of their property, and pursue a more customized set of CC&Rs for their association.  That is a good time to take a long look at how piping is defined and how responsibility is allocated, and then include specifics in updated CC&Rs.

Thanks for your question, Kelly


Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson  Ober PC, a law firm known for community association advice.  Submit questions to KRichardson@ROpc.com. Past columns at www.HOAHomefront.com.   All rights reserved®.


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