I concur.
I agree that a member of an unincorporated association of condominium owners may sue the association in tort. (Code Civ. Proc., § 388.) However, the majority opinion fails to define or distinguish the extent to which individual unit owners in a condominium project may become liable to another unit owner or to a third person for tortious conduct arising in the common areas of the condominium project. In footnote 3, the majority declines to hold on “what property execution may be levied to satisfy a judgment against the condominium and the condominium association."
When as at bench a judgment of dismissal entered after a demurrer without leave to amend has been sustained the question of levy of execution may not be properly before this court. However, the question of the identities of the parties liable is not settled in this case1 nor is the basis of the liability of parties other than the association, to wit, Merrywood Apartments.
*832The ownership of the common areas in a condominium project is vested in the individual unit owners as tenants in common. (Civ. Code, § 1353, subd. (b).) Thus, even though, as the majority holds, the association may be sued in its separate name, it is apparent that the legal owners of the common areas are not immunized from liability by virtue of the mere existence of the association.
A comparative study of California condominium legislation with that in other states shows that the question of the individual unit owner’s tort liability in cases arising in the common areas has not been regulated by statute. The majority’s suggestion that section 1357 of the Civil Code, in providing for the aliquot satisfaction of liens for labor, services, or materials, also provides for the distribution of tort liability among the owners is too great a strain on the expressly limited wording of that code section. This suggestion has been questioned by at least one commentator (Comment, 77 Harv.L.Rev. 777, 780, fn. 24) and it does not square with the fact that California has followed the lead of most states and failed to provide adequate regulation or protection of the individual owner’s interests in the case of torts arising from the common areas. (See Rohan, Perfecting the Condominium as a Housing Tool: Innovations in Tort Liability and Insurance (1967), 32 Law & Contemp. Prob. 305, 308; Kerr, Condominium— Statutory Implementation (1963), 28 St. John’s L.Rev. 1, 42-43; Comment, supra, 77 Harv.L.Rev. 777, 780.) The absence of an express statutory scheme for the re-distribution of tort liability, such as those found in the Alaska, Massachusetts' and Washington legislation, is ample warning that the problem of protecting the individual unit owner from tort liability which, it should be noted, may exceed the value of his unit2 (whether it be to another unit owner or to a third person) is yet an open question in California.
One practical answer is, of course, insurance taken out by the association to cover liability in respect of the common areas. (See Kerr, supra, at p. 43.)3 It might then be argued depending on the terms of the written declaration between unit owners that, at least as between suing and defendant unit owners, the maximum amount of liability of defendant unit owners has been contractually limited to the maximum of the insurance taken out by the association.
*833At bench we have the declaration upon which the project at bench is grounded before us only insofar as its terms are reflected by the permit of the Commissioner of Corporations.
The permit, after setting forth the plan of management and powers of the board of governors, sets forth in pertinent part that the board of governors shall have the power to: “Contract and/or pay for fire, casualty, liability and other insurance and bonding of its members, maintenance, gardening, utilities, materials, supplies, services and personnel necessary for the operation of the project, taxes and assessments which may become a lien on the entire project or the common area, and reconstruction of portions of the project which are to be rebuilt after damage or destruction;”
The above excerpt or summary (in the permit) from the declaration is substantially similar to the powers set forth in section 1355, subdivision (b)(2) of the Civil Code, which empowers the board of governors to obtain “. . . fire, casualty, liability, workmen’s compensation and other insurance insuring condominium owners, and for bonding of the members of any management body;”
It occurs to me, therefore, on the limited record before this court that each unit holder of the project has by contract delegated to the board of governors which operates the project the power and responsibility to obtain adequate liability insurance for the project to cover claims of third persons and also adequate insurance to cover negligence actions of unit owners against the association and actions which any unit owner might bring against other unit owners because of the negligence of the association.
It seems to me therefore that any failure by management to obtain adequate insurance or any insurance leaves a unit holder injured by negligence of management, (as distinguished from independent negligence of a fellow unit owner) with the right to proceed against the association to the extent of its insurance if any and with no right to proceed against other unit owners. A suit by one other than a unit owner is a question not raised by the litigation at bench, and cannot be similarly circumscribed. Generally, tenants in common may be joined as defendants and their liability is joint and-several (Code Civ. Proc., § 384), and the apportionment of liability as between unit owners is, of course, a difficult and vexing question. (See generally, 86 C.J.S.2d, Tenancy in Common, § 143.)
A petition for a rehearing was denied June 21, 1971, and respondent’s petition for a hearing by the Supreme Court was denied July 21, 1971.
In addition to Merrywood Apartments, the complaint named Does I through X as defendants.
Thus, in California, the co-owners may have to respond for injuries arising out of the common areas in terms of the personal tort liability of tenants in common, which according to the common law and our statutory law results in joint and several liability. (Code Civ. Proc., § 384; 86 C.J.S. Tenancy in Common, § 143.)
In California, the governing body of a condominium project may obtain insurance on behalf of, and for the benefit of condominium owners. (Civ. Code, § 1355, subd. (b)(2).)