Wednesday, November 10, 2010

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.