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Subject: Homeowner sues the HOA 5 years after the damage.
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JK7
(California)

Posts:22


08/31/2017 10:39 AM  
We have a homeowner who has been complaining about a squeaking ceiling because of roof damage from heavy rains 5 years ago.

It's likely the contractor from 5 years ago did not properly fix the roof. There are no records of the homeowner's complaining about this event since 5 years ago and since we are all new board members no one fully knows what happened back then and no way to get the original contractor to fix the squeaking because at this point it's out of his warranty.

Is the HOA still responsible for fixing a bad repair?

How likely is the courts going to award this homeowner for this damage?
SheliaH
(Indiana)

Posts:1889


08/31/2017 10:55 AM  
It's hard to predict what a court will do, so don't even try. The owner may be screaming lawsuit, but that doesn't mean one will be filed or if he/she will win - especially if he/she has kept quiet about this for the last five years.

I assume none of the old board members are around to provide history on what happened - if so, talk to them and read the board meeting minutes (everything from the last 5 years) to see if the issue was ever addressed.
Ask the homeowner if he or she has anything in writing on the issue - if not, why not?

You'll also need a little more information on this squeak (the way this reads, I'd think someone was dancing on the ceiling a la Lionel Ritchie). Is this happening all the time or on a really windy day? Is it heard all over the unit or a certain area (by the way, is this a high rise condo or a townhouse?)

You said it's likely the contractor didn't fix the problem correctly the first time and now the work's out of warranty, but have you read the whole thing to see if perhaps the materials are still covered? Is the old contractor still around so he could take a look? Most importantly, has anyone else had similar complaints? Are there other issues, such as leaking? If you don't trust the old contractor, it may be best to have another one inspect the roof to see what's going on and go on from there.
JK7
(California)

Posts:22


08/31/2017 12:05 PM  
Unfortunately, no one kept any records of communication, not even the management. In speaking with the complaining homeowner, she did not make the complaint for many years until this year.

As someone who has been in the construction industry for over 20 years, I'm fairly certain that the original contractor did not do an adequate job.
GenoS
(Florida)

Posts:1446


08/31/2017 1:43 PM  
5 years and no records. Hmmmmm.
DouglasM6
(Arizona)

Posts:320


08/31/2017 1:56 PM  
If the HOA was responsible for the condition of the roof 5 years ago, it's probably still responsible for the condition of the roof today. If there was nothing wrong with the roof the homeowner would not be complaining. That's what I predict the saying, but I'm no lawyer.

Get an estimate for the repair. It may be minor. Then go from there. The estimator may determine that the squeak is not related to the repair from 5 years ago.
JK7
(California)

Posts:22


08/31/2017 2:17 PM  
I should have been more clear. The building is a 4 story building. 5 years ago the roof leaked due to heavy rain. The water poured into the 4th level ceiling and flooded the floor until water went though the ceiling of the 3rd level unit. It's not actually the roof that's squeaking. It's the 4th level unit's wood floor that is squeaking, which is the ceiling of the 3rd level unit.
NigelB
(Texas)

Posts:199


08/31/2017 2:44 PM  
Posted By JK7 on 08/31/2017 10:39 AM
We have a homeowner who has been complaining about a squeaking ceiling because of roof damage from heavy rains 5 years ago.

It's likely the contractor from 5 years ago did not properly fix the roof. There are no records of the homeowner's complaining about this event since 5 years ago and since we are all new board members no one fully knows what happened back then and no way to get the original contractor to fix the squeaking because at this point it's out of his warranty.

Is the HOA still responsible for fixing a bad repair?

How likely is the courts going to award this homeowner for this damage?




Highly unlikely - California has a 3 year statute of limitations on civil property damage claims Cal Civ. Proc. §338(b), (c)
JeffT2
(Iowa)

Posts:338


08/31/2017 3:21 PM  
In between the floors is often a common area. The subfloor of the upper unit, and area above the ceiling and the ceiling of the lower unit are often outside the boundaries of a unit and are common areas for which the association is responsible for maintenance. I suggest you check your documents for the definition and boundaries of a unit, and the association's maintenance responsibilities. If the association is responsible, then it doesn't matter if this was caused by rain, and the association can just make plans to fix the noise.
JK7
(California)

Posts:22


09/01/2017 10:56 AM  
Our CC&R's are vague and it does not seem to clearly define the subfloor as part of the common area. It does say the structural aspects of the building is to be the association's maintenance responsibilities.

It's interesting you say the subfloor is part of the structure. Often the subfloor can get damaged particularly if the flooring is improperly installed. In our case carpet was change out to wood floors and the wood floors were improperly installed to the subfloor years after the flood.

At any rate, it seems part of the problem is that the owner waited so long to complain. Not only is the construction out of warranty but also not even remotely within the statute of limitations.

My problem with this whole event is that this homeowner believes that the Association should have known and come fix the problem from the very get-go.

Is there any way to write into our rules and regulations that the homeowner is responsible for checking that the work is adequately done and report any problems before the warranty is up so we dont have this enormous backlash of trying to backtrack and understand the problem and more costs associated with an out of warranty defect?
DouglasK1
(Florida)

Posts:839


09/01/2017 1:38 PM  
Posted By JK7 on 09/01/2017 10:56 AM
Our CC&R's are vague and it does not seem to clearly define the subfloor as part of the common area. It does say the structural aspects of the building is to be the association's maintenance responsibilities.

It's interesting you say the subfloor is part of the structure. Often the subfloor can get damaged particularly if the flooring is improperly installed. In our case carpet was change out to wood floors and the wood floors were improperly installed to the subfloor years after the flood.

At any rate, it seems part of the problem is that the owner waited so long to complain. Not only is the construction out of warranty but also not even remotely within the statute of limitations.

My problem with this whole event is that this homeowner believes that the Association should have known and come fix the problem from the very get-go.

Is there any way to write into our rules and regulations that the homeowner is responsible for checking that the work is adequately done and report any problems before the warranty is up so we dont have this enormous backlash of trying to backtrack and understand the problem and more costs associated with an out of warranty defect?



I'd say ignore the old repair at this point. There either is or is not a structural issue that is the association's responsibility. If there is, then the association should have it repaired, if there isn't, then not.

I'll also add to the replies that a threat of a lawsuit is far from a lawsuit. Threatening to sue is free, suing generally is not unless there a big enough payout for a lawyer to take a case on contingency, which doesn't see to be the case here.
JeffT2
(Iowa)

Posts:338


09/01/2017 6:56 PM  
For legal reasons, there should be a very clear definition of a unit, and a statement that says that anything other than a unit is common area. In CA, if you don't have that definition/statement, then by law (Civil Code §4185) the unit boundary is the interior surface of the floor, which means the subfloor is common area.
JohnC46
(South Carolina)

Posts:6802


09/02/2017 6:35 AM  
As JK said:

Our CC&R's are vague and it does not seem to clearly define the subfloor as part of the common area. It does say the structural aspects of the building is to be the association's maintenance responsibilities.

I'll bet his docs do not define any or darn few, specific structural items. I maintain whatever is between the units in question (joists, whatever) is the responsibility of the association as they are structural.

Myself, I would wait for the lawsuit before I opened that Pandora's Box. I would also look for a statue of limitation for the one specific case.

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