By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA
Everyone has their own story or has heard the stories. 
Those living in condominium complexes cannot so much as hang a Christmas decoration outside their unit without the blessing of the HOA or the CCRs. Everything outside the four interior walls is the condo owner's and everything outside is a "common area." The ins and outs of who can do what and who is responsible for what is subject to precise analysis of the CCRs and HOA established rules and regulations for each particular complex.
But the general gist is that the HOA will be responsible for maintaining the common areas and the owner for maintaining his unit. What if an injury arises from lack of maintenance of the common area? Or the owner is not given permission to install, maintain, or repair something which, by doing, he thinks will prevent injury. The question thus arises after the inevitable injury: Who is responsible for that injury?
In California, under such circumstances, the HOA "is, for all practical purposes, the Project's 'landlord.'"* In one case, a condominium project was beset by a crime wave. There was crime after crime. One condominium owner wanted to install a light near his unit to help prevent crimes from occurring there. The HOA denied him permission, citing the CCRs, which did not allow individual unit owners to install security apparatus. The HOA also argued that it was constrained by budget and majority membership approval of improving the security in common areas. It could not do it without money and a majority vote.
Irrespective of these restraints, the appellate court found that the traditional negligence notions applicable to a landlord applied to the HOA. Since it in effect controlled that area, the common areas, the HOA had a duty to prevent injuries in those areas.
There are some liability implications to HOA directors in these situations. They are interesting enough to merit a detour to discuss them. So in the next couple of posts, we'll discuss.
*Frances T. v. Village Green Owners Assn., 42 Cal. 3d 490, 499 (1986)
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