Do homeowners have to pay for replacement fencing or gates?

Republished with permission from copyright holder
A unit owner balks at the cost, as well as the association board's choice of vinyl fencing to replace wood.
     

By Donie Vanitzian

July 26, 2013, 7:23 p.m.

QUESTION: The board sent letters to owners saying the association is replacing wood fencing with vinyl fencing. This decision was never discussed at open meetings. Owners were not given a chance to vote or choose the replacement fencing. The association pays for outside fencing around individual small backyards, but says any fence replacements between neighbors' units must be paid for by the unit owners. At $600 per gate, we're told vinyl gate replacements are cheaper than wood replacements and will last forever. The board warned owners not to put a barbecue within a foot of the vinyl fence because the fence could melt and the owner will have to pay for a new one. Our covenants, conditions and restrictions don't mention fencing or replacement. Do owners have to pay for fencing or gates?

ANSWER: A "fire caution" should be embedded on the vinyl fences and also on an indestructible monument next to the fence so there is no mistake that it is a fire hazard.

It appears that this board is aware of the liability it has caused by choosing vinyl fencing, and instead of taking responsibility for its actions, it has developed a scenario that places the burden on the owner to become legally obligated as the responsible party rather than the association.

Unless the association has a precedent of installing and replacing the individual gates, and presuming the association's governing documents do not state otherwise, it appears that the gates are intrinsically linked to the owner's "exclusive use common area." Therefore, the gates probably are optional features and the individual owner would be responsible for that payment. Civil Code section 1351 defines exclusive use common area as a portion of the common areas designated by governing documents for the exclusive use of one or more, but fewer than all, of the owners of the separate interests and which is, or will be, appurtenant to that owner's unit.

In Lamden vs. La Jolla Shores Clubdominium Homeowners Assn., the court used Nahrstedt vs. Lakeside Village Condominium Assn. as its springboard in adopting a new California standard consisting of a "rule of judicial deference to community association board decision making that applies, regardless of an association's corporate status." In subsequent review of this rule, Affan vs. Portofino Cove Homeowners Assn., courts were clear that this deference applies only to the "reasoned decision making" of the association and does not "create a blanket immunity for all the decisions and actions" of the association.

Therefore, while owners may be responsible for the cost of replacing gates and fences in exclusive use common areas, that deference could be lost as the board is not absolved of liability in the event of willful or bad decision making, or from failing to perform a modicum of due diligence. California courts often look to whether any director knew or should have known that such problems existed and then failed to take quantifiable action.

Civil Code section 7231 imposes a requirement on each board director to serve in good faith and in a manner that director reasonably believes to be in the best interest of the association. To meet these standards, the board must make reasonable inquiries and obtain the necessary information to make informed decisions before acting. Here, the board has clearly failed to take these necessary steps if it has selected fencing that poses such an obvious fire hazard and risk to owners.

Upon review of the association's insurance policies, the board may face further liability for its poor judgment. This blatant failure to mitigate fire danger may negate insurance coverage, leaving owners scrambling to fund damage claims. If any of this fencing is destroyed, catches fire, results in injury to property or life, the outcome could be catastrophic, subjecting the association to significant costs.

Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.