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.
Top
DISABLED OR HANDICAPPED OWNERS
Q.
Is an association required
to make alterations to the common area in order to accommodate a
member who is disabled or handicapped?
A.
No. However, disabled or
handicapped owners may make alterations to their units or the
common area at their expense to accommodate their handicap. This
may include the installation of handrails, wheelchair ramps or
other modifications. The right to modify the common area is
subject to the following:
-
Modifications must be consistent
with applicable building codes;
-
Modifications must be consistent
with the governing documents of the association;
-
Modifications may not impair the
structural integrity of any structure or interfere with any
mechanical systems;
-
Modifications may not prevent
reasonable passage by other residents, and must be removed
when the unit is no longer occupied by persons requiring the
modifications; and
-
Owners who intend to make
modifications must submit plans to the association and the
association may not disapprove them without cause. Top
BOARD REFUSES TO REPIPE BUILDING
Q.
Our condominium building has old galvanized pipes that have been leaking for several years. The board makes repairs, but has refused to repipe the building because our reserves are inadequate. What is their legal duty?
A.
The board should borrow the funds to repipe the building if possible. If a loan is not available, the board should immediately begin the process of increasing assessments so the work can be done at the earliest possible time.
Given that the board has knowledge of the deteriorating pipes, the
association will probably be liable for the total cost of all repairs resulting from future leaks. Repiping will cut off the association's liability.
Top
PIPE REPAIRS COVERED BY INSURANCE
Q.
Will the association's insurance policy cover the cost of repairs resulting from the leaking of our building's old galvanized pipes?
A.
Most insurance policies will not pay for such damage if it determines that the board knew of the deteriorating pipes and failed to replace them. Insurance policies generally cover only sudden, unexpected losses. Losses from old deteriorating galvanized pipes are expected.
Top
SECURITY CAMERAS IN THE POOL AREA
Q.
Our condominium association is experiencing a great deal of unlawful activity around our pool area. Can we safely install security cameras in the pool area in order to discourage this type of activity?
A.
Your association can and should install security cameras in the pool area if illegal activity is taking place. However, it is important that the cameras be installed in such a way as to avoid invading the reasonable expectation of privacy of people using the pool.
I recommend that you consult with an attorney before purchasing and installing any cameras in the pool area. Top
DUMMY CAMERAS
Q.
The board of directors of our condominium association is considering the installation of dummy cameras in our parking garage and entry areas to deter crime. I have been told this may not be a good idea. What is your opinion?
A.
Dummy cameras are never a good idea because they create potential liability for the association. When owners, renters and visitors see dummy cameras, they often believe the premises are being monitored and therefore, they are reasonably safe. If a serious crime takes place, you can be certain the
association will be named as a defendant. It is far better for the association to spend its money on real cameras to deter crime.
Check with an experienced insurance broker to determine if your association can qualify for a discount on its premiums if it installs real security cameras.
Top
GUARDS AS EMPLOYEES
Q.
Our homeowner association is spending a great deal of money on several security guards at our condominium association. We are considering hiring our own guard employees who will be required to obtain guard cards. The board is split. Some board members are agreeable to paying more to a guard
company even though it is more expensive. What is your opinion?
A.
Do not hire your own guards. Hire a professional security firm that trains and supervises its guard employees. You will greatly reduce your association's potential liability. The money you will save is not worth the increased risk. If there is a serious incident at the property resulting in a lawsuit, you want the benefit of the guard company's insurance and expertise in training and supervising guards.
Top
DAY CARE CENTERS
Q.
Our HOA recently sent a letter
to one of our members demanding that she
cease using her condominium as a day
care center. The owner refused and told us that we cannot stop her
from running a day care center as long as the
number of children does not exceed 14.
Is this correct?
A.
Yes, however there are some additional conditions. The California State
Legislature has determined that day care centers may be operated in
residential communities so long as the number of children does not exceed 14
and do not stay over 24 hours at a time. Other conditions include licensing,
insurance, proper supervision of the children, indemnification of the
homeowner association, and following certain regulations and operating procedures.
Top
SECURITY SIGNS
Q.
In order to provide better security, our board recently installed security cameras in the common area. Are we required to post signs informing members and visitors that we have surveillance cameras?
A.
No. If the cameras are limited to common areas where there is no expectation of privacy, posting signs is not required. If the cameras are in the pool area, signs should be posted because of the greater expectation of privacy.
Notwithstanding, I believe posting such signs is a good idea because these types of signs act as an added deterent.
Top
TREES
Q.
There is a tree growing on the boundary between my property and my neighbor’s property. Who owns the tree and who has responsibility for its maintenance?
A.
Trees are improvements to real property and ownership is
determined by the location of the trunk, not the branches or
roots. Therefore, you own the tree jointly and each of you has
responsibility for the maintenance of the tree on your side of the
line.Top
SUSPENDED CORPORATION
Q.
Our Association’s management company recently informed the board
that the corporate status of the association had been suspended.
How does a homeowner association become suspended and what are the
consequences?
A.
Possible reasons for
suspension are:
| • |
Failure to pay taxes, |
| • |
Failure to file taxes, |
| • |
Failure to file a Statement by Domestic Nonprofit
Corporation, or |
| • |
Failure to file a Statement by Common Interest
Development |
The consequences include the loss of:
| • |
The right to bring and defend lawsuits, |
| • |
The right to collect
assessments, |
| • |
The right to enforce contracts with contractors and
vendors, and |
| • |
The right to enter into contracts. |
A suspended corporation (association) can be revived. When this
occurs, a Notice of Revivor is provided by the Secretary of
State.Top
REAL ESTATE TAXES
Q.
Are homeowner associations required to pay property taxes on the
common areas?
A.
No. Taxes on the common areas are paid by the members of the association through their individual tax bills. The value of the common areas is reflected in the value of each separate interest. Notwithstanding, it is possible that an association could be required to pay a special district user fee, but this is not common.Top
