Enjoyed your column and have the following question.  I have repeatedly requested our board not to persist in having our landscape workers to go off property and trim bushes, etc. on the city street which fronts our common area property.  I have quoted this to them: Civil Code section 1364(a) says that a board’s duties are limited to  "repairing, replacing, restoring or maintaining" the common areas.  It also said the association could lose its tax status for such activities.

B.S., Santa Barbara

Dear Mr. BS.:

            It is true that one of the most basic duties of any common interest development board is to maintain and repair the common area, although the extent of this duty depends very much on the content of the association’s governing documents.  Pursuant to Civil Code Section 1364(a), if the governing documents do not otherwise state, the association maintains and repairs common area, the association repairs exclusive use common area, the member maintains exclusive use common areas, and the member maintains and repairs their separate interest.

            Is the area in question part of the Association or not? Many of my clients are surprised to find property which they thought was part of the association was in fact not within the association.  Recently, a client of mine had to re-do an election because they discovered that some lots thought to be member lots (and therefore voting) were not actually in their association.  To determine whether or not a given location is common area, or is even within the association at all, look closely at the condominium plan or subdivision map.  In a condominium or planned development, that is the document which establishes or defines the property involved.

            If the Association is voluntarily taking over maintenance of property outside the Association, a question of degree is involved.  Is the gardener simply pruning a few bushes just outside the gates to enhance the entrance’s appearance, or is the association maintaining hundreds of square feet of someone else’s property?  In the former, the board may be well within its reasonable discretion, while in the latter situation the board might not.  First, is the board acting outside its authority?  Second, is the board exposing the association to liability for that land, to the extent the association is caring for its condition?  Last, the city might not approve of what the association is doing to city property.

            Reasonableness is key, and hopefully your board is not going overboard in its civic-mindedness.