BOARD WON'T
FIX LEAKY ROOF
Q.
We live in a three story condominium complex that is over twenty
years old. The roof needs replacement, but the association does
not have the funds to replace it. It has been patched numerous
times, over several years, but still leaks when it rains. Our
roofer tells us that patching will only slow the water down and
that we must replace the roof. This has been confirmed with a
second opinion. The board has attempted three times to get a special
assessment passed, but has failed to get one approved due to a
combination of indifference and people on the lower floors refusing
to pay the cost. Our ceiling, walls and furniture has been damaged.
What can be done?
A.
The board can approve an emergency assessment where there is a
threat to personal safety on the property. While your situation
may be a legal stretch, the board should immediately discuss the
option with its legal counsel. Absent a special assessment and
repair, your option is to sue the association for failing to maintain
the common area. Top
HIRING CONTRACTORS
Q.
We live in a common interest development. Based on the recommendation
of our management company, our board of directors obtained three
bids for landscaping maintenance and then selected the company
with the highest bid. The bids were for identical work. Since
all three companies were proposing to do the same work, shouldn’t
our board have selected the lowest bid? Our monthly assessments
are already too high and many of us live on fixed incomes.
A.
The board should use its best judgment in deciding which company
to use, based on all facts available. This is their legal duty.
While the three companies may have submitted bids for the same
work, it does not logically follow that all three companies will
provide the same quality of work. Sometimes experience is helpful
in determining which company will provide the highest quality
work and, likewise, who will be the most reliable contractor.
One of the advantages of hiring an established local management
company, is that they have experience with contractors and can
provide valuable recommendations to the board of directors. Top
CONSTRUCTION DEFECTS
Q.
We live in a community of new single family homes that has an
association and common area. Behind our home is a common area
hillside that is draining water onto our lot because of an inadequate
drainage system. The water is starting to lift our patio slabs
and do other damage. We are concerned that with a heavy season
of rain, the damage will become very serious. Our homeowner association refuses to sue the
developer for construction defects because our home is the only
one significantly impacted by the flow of water. Are we without a remedy?
A.
No. If the association refuses to protect your rights, an experienced
construction defect attorney can file a derivative suit to protect
your rights. You should consult an attorney immediately because
you can lose your rights if you wait too long. Top
NO COMMON
AREA
Q.
Our homeowners association is incorporated, but has absolutely
no common area. Are we still regulated by the Davis-Sterling Act?
A.
No. You are regulated primarily by your CC&Rs and the California
Corporations Code. Top
PROHIBITION
OF SMOKING
Q.
Can our homeowners association establish a rule that prohibits
smoking in the common areas?
A.
In the absence of a provision in your CC&Rs that prohibits
such a rule, the answer is yes. Directors of association boards
have the right to make rules governing the use of the common areas
so long as they follow the required legal procedures, are legal and are not inconsistent with the CC&Rs.
Keep in mind that such a rule can be over turned by a subsequent
board of directors, and consequently, an amendment to your CC&Rs
would make more sense if you want a long-term ban. Top
REMOVAL OF
TREES BY BOARD
Q.
Our homeowners association consists of twelve townhomes. We have a three person board
which includes two members who live off-site. The two off-site board members
just voted as a majority to remove several beautiful, twenty-five
year old trees because they want to save money on tree trimming.
The ten members of the association who live on-site are
furious about the decision.
The trees are being removed within a week. Is there anything we can
do?
A.
If the board of directors has a good reason, in their reasonable
judgment, to remove the trees, they may do so.
While I recommend that
you present a petition signed by the ten members to your board
in order to influence their decision, they may legally exercise
their reasonable judgment and remove the trees.
This situation illustrates
the critical importance of electing board members who will represent
the majority of members. Members of associations
should take the subject of board elections very seriously. Top
BOARD FAILS
TO MAINTAIN COMMON AREA
Q.
The board of directors of our homeowner association is permitting
members of our association to grow ivy on the exterior stucco
of our buildings. The
stucco is common area that must be repaired by the association
if the ivy damages it. Since
I don’t want to be responsible to pay for stucco repairs through
my association dues in the future, what should I do?
A.
First, point out to your board the specific provisions in your
CC&Rs (Covenants, Conditions and Restrictions) that obligate
the association to maintain the stucco. Next, point out the fact
that future stucco repairs are only one potential liability being
created by permitting the ivy to grow on the stucco. When ivy or other vines
cause the water-proofing quality of stucco to be destroyed, moisture
can enter the buildings causing substantial interior damage, including
but not limited to mold infestation. Some molds are highly toxic
resulting in immune system disorders and other serious medical
problems. In short,
your board is assuming a big and unnecessary risk by allowing
ivy or other plant materials to grow on the stucco. Top
LEAK FROM
UNIT ABOVE
Q.
The condominium above ours has a defective shower pan that leaks
into our home. Our management company insists that we must deal
directly with the person above us and will offer no assistance.
Their position is that the association has no power to act. Are
they correct, or should they take action to force the owner with
the leaking pan to repair it?
A.
Your association has the power to act whenever common area property
is being damaged by a member of the association. If the defective
shower pan is allowing water to wet the internal structure of
the building (common area), it may cause dry rot, electrical problems,
or other damage. Thus, the association has the power to act.
If your management company
and association will not provide you with assistance, you may
take legal action yourself. Before filing a suit against your
neighbor, your attorney should review your CC&Rs. If a claim
can be brought for the enforcement of the CC&Rs, you may be
entitled to recovery of legal fees. Top
COMMON AREA
FLOODS
Q.
The common area of our homeowner association floods around the
area of my townhouse every time we get a strong rain. The water easily reaches
a depth of six inches which causes foundation movement and resulting
interior damage. The
flooding and damage are due to the failure of our board of directors
to maintain the existing drainage system and to enhance it where
needed. Is our association
legally responsible for such maintenance?
A.
Probably. In accordance with section
1364 (a) of the California Civil Codes, “Unless other wise provided
in the declaration of a common interest development, the association
is responsible for repairing, replacing, or maintaining the common
areas other than exclusive use common areas***”
While you should check
your CC&Rs (Covenants, Conditions and Restrictions), it is
highly unlikely that they require anyone other than the association
to maintain the area described. Top
TRANSFER
OF COMMON AREA RIGHTS TO MEMBER
Q.
The board of directors of our condominium association recently
granted the exclusive right to use a part of the common area to
a member of the association. Can they legally do this and, if
not, what can be done?
A.
The common area of a condominium association is owned by all
members of the association. Every member of the association holds
legal title to an undivided interest in the common area and has
the right to use it together with the other members. Notwithstanding, there are some circumstances under which the board can convey exclusive rights. You should consult an association attorney to determine whether the board acted within the scope of the exceptions.
BOARD REFUSES
TO ENFORCE CC&Rs
Q.
I live in a zero-lot-line homeowner association where the CC &
Rs (Covenants, Conditions and Restrictions) make the association
responsible for exterior stucco repairs and maintenance except
for situations where a member of the association has caused the
damage. Each member of the association is responsible for interior
repairs.
My neighbor has planted
ivy in her yard which has attached itself to the exterior of my
townhome in an area where only my neighbor has access. I am concerned
that the ivy will eventually damage the stucco leading to water
intrusion and interior damage. The board of directors seems to
be reluctant to request that my neighbor remove the ivy. What
should I do?
A.
You should advise your board of directors in writing of their
obligation as set forth in your CC & Rs . Specifically, you
should point out that the board should either require your neighbor
to remove the ivy, or agree to recommend to the full membership
, a proposed amendment to the CC & Rs that would require the
association to make both exterior and interior repairs caused
by exterior plants.
It is highly unlikely that
your board will choose to amend the CC & Rs as such. It is
more likely that they will agree to request the removal of the
ivy.
If the board fails to do
anything, you probably will have documented your file sufficiently
to hold the association responsible if damage takes place in the
future. Also, to be safe, I recommend that you send copies of
your correspondence to any new members who join the board at a
later date.
Top
SATELLITE DISH RULES
Q.
How do I learn more about Satellite Dish Antenna Rules for homeowner associations?
A.
Visit Satellite Dish Antenna Rules on our website.
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