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Subject: Common Area
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JohnL37
(California)

Posts:6


12/08/2018 8:31 PM  
The HOA PUD perimeter wall is in my back yard. It was there when I built a custom house on an empty lot. An unknown vehicle, from the street, hit my portion of this wall, causing a large hole. Although this wall is commonly considered a 'common area', my HOA refuses to accept responsibility for this damage; instead it told me to discuss it with the city (the wall is actually on private property) and repair it at my own cost as the city disclaims any responsibility. This HOA's position is against California law. What recourse do I have now?
TimB4
(Virginia)

Posts:16286


12/08/2018 9:23 PM  
First, read and understand your governing documents which should identify who actually has responsibility for the wall.

If the governing documents specify it is the Associations responsibility and the Board is refusing to acknowledge it, you may need to contact an attorney. You can start small and have the attorney review the information and write a letter on your behalf.

Another option, is to simply contact your homeowners policy. Explain the situation to them. They will likely repair the wall and, if the governing documents (you will need to provide them a copy) specifies the responsibility is the Associations the insurance company will likely contact the insurance company of the Association to be reimbursed. Prior to contacting your insurance company ask for the Board for a copy of the certificate of insurance that you can pass on to your insurance company.
LetA
(Nevada)

Posts:674


12/08/2018 10:37 PM  
I assume the schnook that hit the wall did not have auto insurance? Like Tim said, contact your homeowners insurance, let them duke it out with the HOA. That's what you pay those nice premiums for.
TimB4
(Virginia)

Posts:16286


12/09/2018 4:38 AM  
Posted By LetA on 12/08/2018 10:37 PM

I assume the schnook that hit the wall did not have auto insurance?




OP said the wall was hit by an unknown person.
MelissaP1
(Alabama)

Posts:8078


12/09/2018 5:43 AM  
Like the others... Call your homeowner's insurance on this one to handle. They may go to the HOA's insurance. Again read your documents on who may be responsible.

Remember when you has the HOA to pay for something, it really means your asking your entire membership to pay for that expense. Which should be voted on and approved by the board it is every member's responsibility. If it turns out to be on common property and the HOA built it, then I say HOA responsible. If it is on common property and the HOA gave permissions for it to be built to whomever lived there, then I say it's your responsibility.

The HOA's insurance deductible can be very high. Plus putting a claim on it can make the HOA's insurance go up or even risk losing it. Which then effects everyone in possible higher dues. So the HOA may not put it as an insurance claim but have someone come out to evaluate the expense of repairs. If cheaper than the deductible, then they may pay a contractor to do the repairs instead. Just so you understand why the HOA's insurance may not play a role in the repairs IF the HOA decides it's responsible. Plus you have no real control on how the HOA decides to fix it if they own and pay the contractor. It's their wall and they can decide how/what to do with it.

Former HOA President
JohnL37
(California)

Posts:6


12/09/2018 7:12 AM  
The HOA CC&R and the HOA insurance policy make no mention of the perimeter wall as a common area. My understanding is that if an item is not mentioned nor excluded in a inusrance policy, then it is covered.

My homeowner's insurance policy has a deductible of $10,000; as I paid $2500 for the wall repair, my insurance carrier declines to be involved in my dispute.

My HOA directed me to seek city assistance for relief. However, my city of Davis, CA specifically rejects any liabilty whatsoever. Their records show that the wall was erected at the start of this PUD project, solely on private property. The wall was there when I built my house on an empty lot.

I have contacted several attorneys, but they all decline to help me, as the amount I seek from the HOA is below their $5000 minimum retainer fee.

I feel so frustrated and angry, as my HOA is in such willful disregard and specific violation of the California State Civil Code.
o


DouglasK1
(Florida)

Posts:1393


12/09/2018 7:56 AM  
Most HOA walls are on private property, the association typically has a wall easement that allowed them to erect the wall on your property. Does your lot plat show that the wall is on an easement granted to the association? Most associations do take responsibility for the exterior walls since having a uniform wall makes the development look better. In the absence of anything in your governing docs specifying that the association should maintain the wall, it would be up to the board to decide if they want to do that or not. In our case, the wall has been hit 3 times in 20 years, in each case the association has taken the responsibility for the repair, which has always been paid for by the driver's or association's insurance.

I would not expect the local municipality to take any responsibility.

You mention the association's actions contravene CA state law, can you be more specific?

Since the governing docs are silent on the wall, there doesn't seem to be any requirement that you maintain it either, or keep the same form. You could try putting up a wooden fence and see if that doesn't get the neighbors howling for the association to fix it.

Escaped former treasurer and director of a self managed association.
KerryL1
(California)

Posts:6350


12/09/2018 8:48 AM  
Like Douglas, JohnL, please byte the exact quote in CA law (Civil code, I imagine) that say the HOA pays to fix or maintain the wall. I'm thinking it probably IS the HOA's responsibility, but wan to see the wording.

Do check your actual deed & lot plat. also take a look at your HOA's reserve study to see if the wall is listed on it as a possible reserve item
JohnL37
(California)

Posts:6


12/09/2018 9:36 AM  
Please look at the Davis-Stirling Act of the California Civil Code. It clearly defines the role of the homeowner and the HOA with respect to responsibility of the common areas.
JohnL37
(California)

Posts:6


12/09/2018 9:44 AM  
The wall extends the entire perimeter of my PUD, except for openings for vehicles and pedestrians. It was already in place when I built my house on an empty lot. My contractor told me not to tamper with it at all (change its appearance, height, color, etc.) as it was a common area and must be left inviolate. My HOA is really shirking its responsibility in not fixing at its expense. I truly feel like a 'David fighting against a Goliath'.
MarkM19
(Texas)

Posts:297


12/09/2018 11:00 AM  
John,
This just came up in our latest board meeting. We a the same perimeter fences around our very large community with 1500 homes. Part of a wall has been damaged and the board got a few quotes that were very high to repair this minor damage.


My personal thought that I raised and has still not been answered is what makes that wall any different than every other fence in the rest of the community? If the fence or wall needs to be repaired the HO needs to work it out with the bordering neighbor. They split it accordingly. Why is the HOA solely responsible it this case? This is a Hugh liability to any HOA and reserves should be raised to cover these minor repairs and it's eventual replacement.
KerryL1
(California)

Posts:6350


12/09/2018 11:07 AM  
Once again, JohnL, read your reserves study to see if this wall's listed for future replacement or repair. If so, it's definitely your HOA's responsibility. If not, that doesn't man the HOA isn't resosbile. Also look at your operating budget to see if there's possibly a line item for wall repair. In our operating budget, for instance, we have a line time for fence repair on a annual basis. But they're also listed on our reserves study for eventual replacement.

In the Davis-stirling Act, notice there's no mention of PUD. You're in a Common Interest Development (CID), which in our state is just generically referred to as HOAs, whether condos of detached homes. At Davis-stiring.com, look up common areas.

Maybe Richard, a CA property mgr., can help. It might be you have a small claims court claim. Your also should be able to engage in an IDR or ADR action with your board, but I know very little about them.
AugustinD


Posts:1571


12/09/2018 12:09 PM  
Posted By KerryL1 on 12/09/2018 11:07 AM
Once again, JohnL, read your reserves study to see if this wall is listed for future replacement or repair. If so, it's definitely your HOA's responsibility. If not, that doesn't mean the HOA isn't responsible. Also look at your operating budget to see if there's possibly a line item for wall repair. In our operating budget, for instance, we have a line time for fence repair on a annual basis. But they're also listed on our reserves study for eventual replacement.


I think this advice is excellent. If the wall is in the reserve study or operating budget, then JohnL's legal case for the HOA to pay for the repair seems to me to be much stronger.
JohnL37
(California)

Posts:6


12/09/2018 12:31 PM  
In California HOAs are either condominiums or PUDs (Planned Unit Development). My city has stated that my HOA is a PUD. Neither my HOA CC&R nor the HOA insurance policy makes no mention of the perimeter wall as a common area. It is commonly accepted in the insurance industry that what is not mentioned nor excluded is covered by the policy.

I pay periodic HOA fees. The HOA has insurance to cover the common areas. I have forced to pay $2500 as a HOA member to fix the damaged wall area by myself. I am sure that my HOA has enough money at hand to reimburse me directly or through an insurance claim. It is absurd that I have to repair a damaged common area myself, one that serves the general welfare and protection of all homeowners in my project. I just don’t understand why my HOA has this untenable position, which is contrary to the Davis-Stirling Act of the CA Civil Code. Can anyone explain my HOA’s unreasonable stand?
O




GenoS
(Florida)

Posts:2892


12/09/2018 1:28 PM  
Posted By DouglasK1 on 12/09/2018 7:56 AM
Since the governing docs are silent on the wall, there doesn't seem to be any requirement that you maintain it either, or keep the same form. You could try putting up a wooden fence and see if that doesn't get the neighbors howling for the association to fix it.

Or arrange for other sections of the wall to go away.
RoyalP
(South Carolina)

Posts:692


12/09/2018 1:30 PM  
perhaps your attorney ?!
JohnL37
(California)

Posts:6


12/09/2018 2:00 PM  
No attorney is willing to handle my case. It cost me $2500 to fix the large hole in the common perimeter wall. The typical legal retaining fee starts at $5000.

To give you a flavor of the HOA Board that I am dealing with, let me tell you the story of another HOA member that lives on my same street. His
house is a poorly done reproduction of a ancient Greek private home of the 5th century BC, painted in garish colors. It is totally inappropriate with the other houses around his. He was permitted his design by my HOA as he is a Pulitzer Prize winner. What rubbish!!!

RoyalP
(South Carolina)

Posts:692


12/09/2018 3:45 PM  
you are evidently unhappy with your present living 'arrangements'

you are unwilling to spend (recoverable) money to address the issue(s)

you are free to move BEFORE the next issue arises

however

? who actually owns the wall in question ?

? is it on truly common ground ?

? is it on an easement on your property ?


? What say the Covenants and Restrictions referenced by/in your deed ?


one 'could' document one's grievance/claim and pursue the issue via small claims court

but

one would have needed to send AND PROVE ONE SENT the required 'demand letters' BEFORE making the repair



BEST OF LUCK
next time:

CAVEAT EMPTOR
DouglasK1
(Florida)

Posts:1393


12/09/2018 4:45 PM  
Typically "Common areas" are property owned by the association, which is not true for the property where the wall is. Being "generally considered a 'common area'" doesn't necessarily mean it legally is one. Actual ownership of the wall is a good question, since it assumedly sits on an easement granted to the association. An easement means another party has the right to use your property for a specified purpose (such as building and maintaining a wall), but probably doesn't require the grantee to do so. You should find your plat and see if there is any more detail on the easement to find out if there is some responsibility placed on the association there.

Even though it doesn't make sense to hire an attorney to pursue this in court, it might still be worth paying for a 60 minute consultation to get an opinion. Assuming the attorney agrees you have a case, you could sue in small claims court without a lawyer.

Escaped former treasurer and director of a self managed association.
MelanieK2
(North Carolina)

Posts:1


12/20/2018 5:37 AM  
My HOA in Weddington ,N.C. is set up as a non-profit with both it's SES numbers. The recorded CCR's claim to have common areas. The HOA in reality does not own any common areas (at least not the one on my lot) and did not arrange to lease common areas. It is taking a tax exempt status with the IRS and that is not legal because it does not own the area and the IRS says it must own and maintain. The HOA board is not very interested in explaining or correcting this. What impact does it have on the 6 lots which have these claimed common elements and areas on them ? None of these areas are shown on the owners deed or title searches because the developer and /or HOA has shadowed this.
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