HOA Maintenance and Drainage: Who's Responsible, You or the HOA?

A soggy backyard, a clogged storm drain, a retention pond turning green: the first question is usually who has to fix it. The answer mostly comes from the community's recorded declaration, with state law filling in when the documents are silent. This article covers how that split generally works, what a few state statutes say by default, and where drainage fits.

Every community's documents are different, and drainage disputes often turn on plats, surveys and engineering facts. For your specific situation, a licensed attorney in your state is the right resource. This is general information, not legal advice.

The declaration usually decides who maintains what

In most HOAs and condominiums, the maintenance split starts with the declaration (the CC&Rs), the recorded document that runs with the land and binds every owner. What Are CC&Rs and Are They Legally Binding? explains why. Declarations typically sort property into three groups:

• Common area or common elements: property the association owns or controls for everyone, such as private roads, pools, shared landscaping and, in many communities, shared drainage features.
• Lots or units: what each owner owns individually.
• Limited common elements or exclusive-use common area: shared property set aside for one or a few owners, like a balcony, patio or assigned parking space.

The declaration then says who maintains, repairs and replaces each group, and who pays. Bylaws, board rules, plats and recorded easements add detail, and the state's HOA or condo statute, its nonprofit corporation law, local codes and federal law all operate around those documents.

What state law says when the documents are silent

Several states set default rules that apply unless the declaration says otherwise. A few examples:

California. The Civil Code provides that "unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area," and "the owner of each separate interest is responsible for repairing, replacing, and maintaining that separate interest" (Cal. Civ. Code § 4775(a)(1), (3)). The current version, amended effective January 1, 2025, also makes the association responsible by default for restoring "interrupted gas, heat, water, or electrical services that begin in the common area even if the matter extends into a separate interest," with exceptions, including for services a utility provider must fix (§ 4775(a)(2)(A)).

Nevada. Except to the extent provided by the declaration and two other provisions, "the association has the duty to provide for the maintenance, repair and replacement of the common elements, and each unit's owner has the duty to provide for the maintenance, repair and replacement of his or her unit" (NRS 116.3107(1)).

Washington. Washington's common interest ownership act applies, before January 1, 2028, only to communities created on or after July 1, 2018 and older communities that amend their declarations to opt in (RCW 64.90.360(2)), and some small communities are subject to only parts of it (RCW 64.90.360(4)). For the communities it covers, the act puts limited common elements on the association's side by default: "the association must maintain, repair, and replace the common elements, including limited common elements, and each unit owner must maintain, repair, and replace that owner's unit" (RCW 64.90.440(1)). The declaration can change it.

Florida. Florida's HOA statute leans on the documents. The association's powers and duties include those in Chapter 720 "and, except as expressly limited or restricted in this chapter, those set forth in the governing documents" (Fla. Stat. § 720.303(1)).

For other states, the HOA laws by state guide points to each state's main statutes.

Who is responsible for drainage in an HOA?

Drainage problems tend to fall into three situations, and each points to a different place to look.

Common-area storm drains, swales and ponds

Shared storm drains, swales on common ground, and retention or detention ponds are often common area, which places them on the association's side of the defaults above. Plat language can matter. Florida's definition of common area includes property "dedicated for use or maintenance by the association or its members," including by recorded plat, "regardless of whether title has been conveyed to the association" (Fla. Stat. § 720.301(2)). Some drainage features are instead maintained by a city, county or special district, depending on what was dedicated when the subdivision was approved.

Stormwater ponds can also involve government oversight. A South Carolina state guide notes that "the homeowners association is often the party responsible for maintaining a neighborhood's stormwater pond." South Carolina's stormwater regulation also has inspection agencies notify "the person responsible for maintenance" of deficiencies, "including a time frame for repairs" (S.C. Code Regs. 72-308(D)(1)). Other states and localities run their own stormwater programs, so a local stormwater or public works office may hold the permit or maintenance agreement for a particular pond.

Yard grading, gutters and drainage on a lot

Water problems that start and stay on one lot, such as grading, gutters, downspouts or yard drains, generally follow the lot or unit default: under statutes like Cal. Civ. Code § 4775(a)(3) and NRS 116.3107(1), each owner maintains their own separate interest or unit unless the declaration says otherwise. Plats and declarations frequently add drainage easements across lots, which can limit what an owner may build or change in the drainage path. Texas shows how this interacts with statute: Tex. Prop. Code § 202.023 bars associations from prohibiting security measures such as perimeter fences, but it states that it does not prohibit an association from "prohibiting the placement of fencing that obstructs" a "drainage easement or drainage area" (§ 202.023(c)(3)(C)).

Water coming from a neighbor's lot

When one owner's changes send water onto another lot, the dispute may be between neighbors rather than with the HOA, and general state property and water law may apply alongside the documents. Texas, for example, provides: "No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded" (Tex. Water Code § 11.086(a)). A person whose property is injured by an overflow caused by an unlawful diversion or impounding "has remedies at law and in equity and may recover damages occasioned by the overflow" (§ 11.086(b)). The statute addresses diversions of the natural flow of surface water, not HOA maintenance duties, and whether it fits a given situation depends on the facts. Surface-water rules vary from state to state. If the water comes from common area, the association's maintenance duty for that area may also be part of the picture.

HOA vs. condo: units, common elements and limited common elements

The split looks different in a condominium, where owners typically own their unit and share the building. Florida's condo statute states: "Maintenance of the common elements is the responsibility of the association, except for any maintenance responsibility for limited common elements assigned to the unit owner by the declaration" (Fla. Stat. § 718.113(1)). So a condo building's roof and shared pipes may sit with the association, while in a single-family HOA the house on an owner's lot generally sits with the owner. Condo Association vs. HOA covers the ownership differences in more detail.

What if the HOA doesn't maintain the common areas?

When common-area drainage or other upkeep is neglected, owners commonly look at several avenues, each with its own trade-offs:

• Records. Maintenance contracts, inspection reports, reserve studies and board minutes can show what the association knows and has planned. Many states give owners a right to inspect association records; HOA records requests covers how that works by state.
• The board's duties. Florida's statute says HOA officers and directors "have a fiduciary relationship to the members who are served by the association" (§ 720.303(1)). HOA Board Duties and Removal explains board duties and recall.
• Formal disputes. If informal routes don't resolve it, mediation, a state agency complaint (where one exists) or a lawsuit may be available, depending on the state and the facts. Florida's statute notes that the association's power to sue over common-area matters "does not limit any statutory or common-law right of any individual member or class of members to bring any action without participation by the association" (§ 720.303(1)). Whether a claim makes sense, and its costs and risks, is a question for a licensed attorney. Can I Sue My HOA? and HOA rules and enforcement cover the general landscape.

Some owners consider holding back dues until repairs happen. HOA foreclosure and liens explains why unpaid assessments carry consequences of their own.

Frequently asked questions

Is the HOA responsible for drainage problems in my yard?

It depends on where the problem starts and what the declaration says. Under defaults like Cal. Civ. Code § 4775 and NRS 116.3107, owners maintain their own lot or unit and the association maintains common area. Water from a common-area pipe, swale or pond may point to the association, while grading or gutters on the lot itself generally fall to the owner.

Who maintains a retention pond in an HOA?

Often the association, when the pond is common area, but it can also be a local government or special district, depending on how the subdivision was platted and permitted. The plat, the declaration and local stormwater records generally show who is responsible for a specific pond.

Does the HOA have to repair common areas?

Where the declaration or a state default puts common area on the association, generally yes, as in Cal. Civ. Code § 4775(a)(1) and NRS 116.3107(1). Where California's default makes the association responsible for restoring gas, heat, water or electrical service interrupted by a failure that begins in the common area, the board "shall commence the process to make the repairs" within 14 days of the interruption (§ 4775(a)(2), (b)(1)).

Who maintains limited common elements like balconies and patios?

It depends on the declaration and the state. Florida's condo statute lets the declaration assign limited common elements to unit owners (Fla. Stat. § 718.113(1)); California's default has the owner maintain exclusive-use common area while the association repairs and replaces it (Cal. Civ. Code § 4775(a)(4)); Washington's default, for communities covered by its common interest ownership act, keeps limited common elements with the association (RCW 64.90.440(1)).

Can an HOA stop an owner from changing a lot's drainage?

In many communities it can, through drainage easements, architectural review and rules on grading or structures. Texas's security-measures statute, for example, limits association restrictions on perimeter fences but does not stop an association from prohibiting fencing that obstructs a drainage easement or drainage area (Tex. Prop. Code § 202.023(c)(3)(C)). HOA Architectural Review and Fence Rules covers approval processes more broadly.

Sources

• Cal. Civ. Code § 4775 (maintenance responsibility)
• Fla. Stat. § 720.301 (definitions, "common area")
• Fla. Stat. § 720.303 (association powers and duties)
• Fla. Stat. § 718.113 (condominium maintenance)
• NRS 116.3107 (upkeep of common-interest community)
• RCW 64.90.440 (maintenance, repair, replacement)
• RCW 64.90.360 (which communities the act covers)
• Tex. Prop. Code § 202.023 (security measures)
• Tex. Water Code § 11.086 (overflow caused by diversion of water)
• S.C. Code Regs. 72-308 (stormwater maintenance requirements)
• S.C. Department of Environmental Services, Stormwater Pond Maintenance in South Carolina