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Subject: HOA as Plaintiff
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Author Messages
RogerA3
(Florida)

Posts:8


04/12/2017 8:24 AM  
Can an HOA be represented by a Board Officer in Florida small claims court
SheliaH
(Indiana)

Posts:1859


04/12/2017 9:15 AM  
You posted this twice, so I'll respond here.

You may want to contact your local small claims court office to be sure, but if it's a relatively simple dispute, I don't see any reason why a board officer couldn't do it.

Whoever does this (president, vice-president, etc.) be sure he or she is prepared and educated on the court procedures. The court usually has a brochure or something you can use to help prepare. Basically, you need to gather together your witnesses and documents supporting your case and remember the other side will be able to review your documents as well as present their own, as well as question your witnesses, so even if you aren't using your association attorney, it wouldn't hurt to have a sit down with him or her to review everything to make sure you aren't missing something.
RogerA3
(Florida)

Posts:8


04/12/2017 12:41 PM  
SheliaH,
Don't know how the question got posted twice. Thanks for the reply and advice.
RogerA3
(Florida)

Posts:8


04/12/2017 12:41 PM  
SheliaH,
Don't know how the question got posted twice. Thanks for the reply and advice.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:27 PM  
Don't know how THIS comment got posted x times.
PitA
(South Carolina)

Posts:1362


04/12/2017 2:28 PM  
? perhaps I hit submit more than once ?
RogerA3
(Florida)

Posts:8


04/13/2017 8:05 AM  
HOA intends to sue in small claims court to recover its cost for repairing water damaged ceiling and walls of a first floor unit. The unit was unoccupied so the damage not discovered until two or three weeks after the fact. A catastrophic water discharge from “above” appears to have been a one-time event as plumber found no leaks in either the damaged lower unit or the one immediately above. The upper unit has no water damage and its owner disavows any responsibility. The HOA has no way of proving the exact cause of the water discharge except that it came from “above”. Any thoughts on likelihood of prevailing in the suit against the owner of the upper unit.
Am a computer novice so again apologize for the double post
RogerA3
(Florida)

Posts:8


04/13/2017 8:05 AM  
HOA intends to sue in small claims court to recover its cost for repairing water damaged ceiling and walls of a first floor unit. The unit was unoccupied so the damage not discovered until two or three weeks after the fact. A catastrophic water discharge from “above” appears to have been a one-time event as plumber found no leaks in either the damaged lower unit or the one immediately above. The upper unit has no water damage and its owner disavows any responsibility. The HOA has no way of proving the exact cause of the water discharge except that it came from “above”. Any thoughts on likelihood of prevailing in the suit against the owner of the upper unit.
Am a computer novice so again apologize for the double post
PitA
(South Carolina)

Posts:1362


04/13/2017 8:22 AM  
A quote from attorney Abraham Lincoln:

"A man who represents himself in court has a fool for a client."
MarkM31
(Washington)

Posts:210


04/13/2017 9:04 AM  
Posted By RogerA3 on 04/13/2017 8:05 AM
The HOA has no way of proving the exact cause of the water discharge except that it came from “above”. Any thoughts on likelihood of prevailing in the suit against the owner of the upper unit.




You may have answered your own question right there. What do the CC&R's say? Who owns the plumbing? Could the water have come in from the outside? Seems like a lot of your answers are "maybe", which doesn't do well in court.
SheliaH
(Indiana)

Posts:1859


04/13/2017 9:23 AM  
PitA, behave!!! (Hee-hee!)

Back to Roger’s situation –I think you’re going to have to do a lot more in proving the owner was at fault – you seem to assume he/she is responsible because the water came “from above” and that unit (with no water damage) is directly over the one that did suffer the damage. Some questions that come to my mind (because you haven’t provided details):

Who’s responsible for what regarding plumbing – the association or the homeowner? Has anyone checked the association insurance policy?

Why wasn’t this referred to the association insurance?

Has the owner ever complained to the association about plumbing issues? What was the outcome? How about plumbing complaints from other owners – especially if their units are close to the damaged one (perhaps a unit next door to the upper unit is the real culprit)

Did the PLUMBER find the source of the water and was it in this unit (e.g. a busted water heater)?

How long has this unit sat empty?

Did the owner have the water shut off? How do you know?

Is there any history of plumbing repairs involving that unit? What about the surrounding ones?

And so on.

There’s no way anyone can guarantee how this will end in court and as I said earlier, you need to have your case together before you get there. From what you’ve said, I’m not sure you’d win. I understand wanting to save money in legal expenses and attorney’s fees and you don’t need one in small claims court, but this can get complicated very quickly. Sometimes, it’s best to bite the bullet and get an attorney (preferably one with experience in this area).
JeffT2
(Iowa)

Posts:317


04/13/2017 9:58 AM  
FL condo law has a number of provisions for this, and it can get nicely complicated knowing all the definitions of terms and figuring it out, but at least there is a law that defines it. In your case, I think the best you can hope for is that the upstairs owner will admit something under oath that s/he is not admitting to you now. It looks like if you can't show negligence, you will have to pay.

This article by a FL law firm does a pretty good job of explaining it:

http://www.flcondoassociationadvisor.com/water-leaks-florida-condominiums-association-responsibilities-cost-reduction-strategies/
RogerA3
(Florida)

Posts:8


04/13/2017 12:50 PM  
Thanks to all. This was not a “leak”. It was a one-time catastrophic discharge of water. Master bedroom carpet in lower unit was saturated. Water came over the sloes of my shoes when walked on. Rugs in bath area wringing wet. Insulation between floors was wet. Plumber found no leaks. His report says likely “an accidental spill over of bathroom fixture”. Lower unit unoccupied for the month prior to the discovery of damage (includes mold). We know there was no damage at least two weeks prior to the discovery. Upper unit unoccupied until about two weeks prior to damage discovery. Owner was in residence for those two weeks. HOA insurance won’t cover because the damage is less than the deductible. No indication from owner of the upper unit that his water heater failed or washer hose blower kids overflowed the bath tube. Denies all responsibility.
JeffT2
(Iowa)

Posts:317


04/13/2017 1:45 PM  
That kind of discharge is an "insurable event," so as I understand the FL law, the association has to pay for damage of anything the association insures (even though it is less than your deductible). The only exceptions would be if your association has opted out of the law (I admit I did not read that part) or unless you can show that the upstairs owners was negligent. It comes down to getting some evidence about the situation or testimony of the upstairs owner.

From the article: "Leaving water on when there is no one in the unit that would notice a leak has been considered negligence by Florida courts in the past."

One other point regarding some of the damage: if the upper owner knew there was a leak, and did not inform the association or the lower owner, then the upper owner was negligent in not reporting it, and so is at least responsible to pay for the mold and extra damage that was done by not reporting it.

You may need to get another plumber and keep looking. Are the washer hoses new? Water heater new? Recent plumbing work? Call all the plumbers in your area to see if they did any work in that unit.

We had a situation where taking a shower did not cause a leak, but using the same tub for a bath caused a leak. Keep looking.
JanetB2
(Colorado)

Posts:3061


04/13/2017 10:02 PM  
Posted By RogerA3 on 04/12/2017 8:24 AM
Can an HOA be represented by a Board Officer in Florida small claims court


Generallly small claims court is used to avoid large legal fees for instances which do not have large sums of money involved. If someone is suing over a small amount such as $300 to fix a vehicle which was not properly fixed. Then they will turn to small claims court because an attorney might cost $3,000 to collect $300. Here is a website with the following comment:

http://www.nolo.com/legal-encyclopedia/small-claims-court-faq.html#answer-1742633

Can I bring a lawyer to small claims court?

In a handful of states, including California, Michigan, and Nebraska, you must appear in small claims court on your own. In most states, however, you can be represented by a lawyer if you like. But even where it's allowed, hiring a lawyer is rarely cost efficient. Most lawyers charge too much compared to the relatively modest amounts of money involved in small claims disputes. Happily, several studies show that people who represent themselves in small claims cases usually do just as well as those who have a lawyer.

The question ... is the issue small enough where a Board member can represent for a small amount of $ vs hiring an attorney for many $$$?
MelissaP1
(Alabama)

Posts:6561


04/14/2017 5:07 AM  
I am confused why even going to small claims court??? Explain? You said the damages were not enough to meet the insurance deductible. So then why are we then just not spending the money to fix the issue? Seems a lawsuit is much more expensive than just paying for the damages straight out. Or does a lawsuit sound more "romantic" to do? Which by the way ONLY makes one "WHOLE" not a "profit". The court would just say to reimburse the cost of repairs whether or not insurance deductible paid or out of pocket. Shoot yourselves in the foot much?

BTW: A HOA is a corporation. It should be represented in court by a lawyer or a designated representive agreed by the board. Which includes small claims court.

Former HOA President
DanN3
(Florida)

Posts:78


04/14/2017 5:42 AM  
I, as CAM, have represented both 718 and 720 associations in the past, before a small claims court and in arbitration, without objection. This saved the defendant significant legal costs since, so far, I have always prevailed.
RichardP13
(California)

Posts:2004


04/14/2017 7:24 AM  
Posted By MelissaP1 on 04/14/2017 5:07 AM

BTW: A HOA is a corporation. It should be represented in court by a lawyer or a designated representive agreed by the board. Which includes small claims court.



WRONG!! WRONG!! WRONG!!
MarkM31
(Washington)

Posts:210


04/14/2017 7:26 AM  
Posted By MelissaP1 on 04/14/2017 5:07 AM


BTW: A HOA is a corporation. It should be represented in court by a lawyer or a designated representive agreed by the board. Which includes small claims court.




No, depending on the state, lawyers are not permitted. There are some exemptions to that, when the lawyer is the individual being sued, and when the lawyer is an employee or member of the board of the company being sued and the practice of law is not the job desrcription of that individual.
RichardP13
(California)

Posts:2004


04/14/2017 7:34 AM  
In most jurisdictions, lawyers can only represent their clients if they are the defendant and are appealing a decision that went against them. A plaintiff in small claims CANNOT appeal a decision.
PitA
(South Carolina)

Posts:1362


04/14/2017 12:37 PM  
PitA, behave!!! (Hee-hee!) ...............


? WHY ?

It is MUCH more fun being a PITA
RogerA3
(Florida)

Posts:8


04/17/2017 7:50 AM  
Local Court Rules say that any business entity recognized under Florida Law may be represented by a principal of the entity such as an officer. An officer of the Board (President, Vice President, etc) should qualify as an officer of the HOA.
PitA
(South Carolina)

Posts:1362


04/17/2017 11:54 AM  
The key word being MAY
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