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Subject: Breach of fiduciary duties
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ShivaB
(California)

Posts:4


09/05/2019 9:35 AM  
My husband was talked into taking a board president position at our complex (14 units) soon after we moved in. We realized soon after moving in that there was excessive foot fall noise from the upstairs unit. The unit had been remodeled shortly before we purchased with wood flooring. Our HOA CC&Rs and architectural guidelines state that remodeling needs to be done by a licensed contractor and needs to meet STC and IIC specs (58 etc). My husband realizing that his position put him in an awkward place to start an investigation into the flooring upstairs, recused himself as the board President. The owners upstairs fought getting a sound test done for a year and half necessitating a legal plethora of everyone (HOA, us and the upstairs owners) hiring lawyers. Here we are close to almost half a million dollars spent on legal fees between all parties, they are now falsely accusing my husband of a number of things such as breach of fiduciary duties, economic interference, etc etc. We have two teams of lawyers (insurance and our own). There is no evidence for any of these claims but the owners upstairs want to get away from addressing their flooring mistake. Our investigation showed that their sound test did not pass the STC/IIC sound specs according to our Arch guidelines and their contractor was a general contractor and was not licensed to do flooring specifically for condos. The association dropped the lawsuit against the upstairs people because they didn’t want to spend any money and as a result the owners are now faced with paying legal fees to date to the upstairs people. Does anyone have any insight or advice?
We are pressing on with a nuisance lawsuit and enduring emotional distress. We are also planning to sue the association for negligence and not reinforcing the arch guidelines. Any advice or experience on this matter would be helpful.
JohnC46
(South Carolina)

Posts:8904


09/05/2019 9:45 AM  
You started it.
BarbaraT1
(Texas)

Posts:246


09/05/2019 9:50 AM  
Move? Never buy a condo again? I don't know why anyone would buy a condo, they are uniformly the worst.

CathyA3
(Ohio)

Posts:550


09/05/2019 10:16 AM  
Being pragmatic here, this looks like one of those cases where you may be "dying in full possession of the right of way". It's a sad fact of life that the jerks of the world seem to inflict far more misery on others than the others can inflict on them. If I were in your shoes, I'd decide how much I loved my home and would I still love it as much after spending excessive amounts of money and emotional turmoil on a lawsuit with no guarantee on the outcome. I never hesitate to walk away from a problem unless the stakes justify the effort needed to resolve things to my satisfaction. My peace of mind far outweighs any desire to stick it to a bad actor.

I went through a similar issue a number of years ago. I learned that the flooring actually mattered less than the behavior of the upstairs owner. I learned that the upstairs owner always has the upper hand: he can make you more miserable than you can make him (see previous comment about jerks). I also learned that I'm not willing to have upstairs neighbors ever again, and I sold my unit.
CathyA3
(Ohio)

Posts:550


09/05/2019 10:28 AM  
A further comment about suing the association for failing to maintain the architectural guidelines:

How do you know they haven't been trying to enforce the guidelines? You don't unless the board confirms that it has or has not done so. Enforcement actions are typically confidential, so outsiders have no idea what is being done.

There are also real limits to what an association can do when faced with a stubborn owner (which is what it looks like the upstairs owner is). It may get down to needing to take the owner to court, and board members have to weigh the cost of doing so against all of the other needs of the community. There may not be enough funds available to fight a protracted battle, and the board may have limited themselves to what they can reasonably accomplish without foisting the added expense onto other homeowners who will not benefit from it. The fact that their action have not accomplished their goal does not prove negligence.
ShivaB
(California)

Posts:4


09/05/2019 10:42 AM  
This is a valuable property and it’s in a great location. The HOA did launch a lawsuit to reinforce compliance but after back and forth legal battle with 5-6 lawyers swapped out by the upstairs jerks and failed attempts to settle the case, they dropped the lawsuit even after the test showed they are out of compliance. Also one of the new board directors wanted to put her own wood flooring in and didn’t want interference with her own remodelling. Another new board director who insisted on dropping the lawsuit sold soon after and left. There is corruption all over. In the hind sight, buying in a condo association with dishonest jerks living above us and around us was a misfortune. I’m just looking to hear other similar experiences.
ShivaB
(California)

Posts:4


09/05/2019 10:45 AM  
If you don’t have anything useful to say, keep it to yourself.
NpS
(Pennsylvania)

Posts:3921


09/05/2019 11:13 AM  
What are you proposing Shiva?

Like it or not, the BOD made a decision to bail out of the lawsuit. Or maybe it was the insurance company who decided to bail out. Either way, someone decided to cut their losses.



Sikubali jukumu. Read all posts at your own risk.
ShivaB
(California)

Posts:4


09/05/2019 11:30 AM  
I’m not proposing anything. I’m asking for folks to share their experience if they have gone through something similar. Again if you don’t have any input that’s of help, no need to weigh in.
JohnT38
(South Carolina)

Posts:137


09/05/2019 2:22 PM  
Barbara,

General statements like the one you just made are seldom true. I live in a condo (Side by side style) and it's a perfect match for me. Because of health issues, I do not want to deal with exterior maintenance or yard work. I also enjoy the social events that my community offers. Several of my neighbors travel a lot and for them condo's makes perfect sense. We also have residents that use their condo as a second resident.
JohnC46
(South Carolina)

Posts:8904


09/06/2019 8:36 AM  
JohnT

Legally you might well be in a Condo but to me side by side units are Townhomes as in no other units in front, nor behind you. Not other units above nor below you.

In SC, multi story Condos fall under the SC Horizontal Property Act. Other type associations, townhomes, single family, duplexes, etc do not. They fall under Title 27, Homeowners Association Act. It mainly deals with what owners are entitled to get from the developers versus how to run their association. Title 27 has no teeth. It was feel good legislation at its best.

I am located in small HOA of 112 owners in Lexington SC. We are standalone, private, small patio homes. We have no amenities thus not a very complex HOA. Where are you?
RichardP13


Posts:0


09/06/2019 8:39 AM  
And in California, EVERYTHING is under one. SIMPLE
JohnT38
(South Carolina)

Posts:137


09/06/2019 9:02 AM  
I'm in Greer which is right outside of Greenville. We have a mixture of 144 single and two story condos as well as 21 patio homes. I've lived here almost 2 years and love the area. They've done a great job with downtown Greenville!
SteveA7
(California)

Posts:20


09/14/2019 12:00 PM  
Hi ShivaB,

My condo project has a CC&R that says hard surface flooring must pass an FIIC test of 55.

"Upon installation of hard surfaced flooring, such as marble, granite, tile, or hardwood, Members shall perform and submit to the Association the results of an FIIC test performed by a testing agency approved by the Association."

My HOA gave the upstairs owners a variance so they do not have to do the test.
At least your HOA appears to side with you, as it should IMHO.
My Board may go to go to court to defend it's decision not to enforce the CC&Rs.

Sorry i really don't have any suggestions on how to proceed, but I totally sympathize with you .
HOAs are nuts, is all i can conclude. Hope it works out for you.
SteveA7
(California)

Posts:20


09/14/2019 12:11 PM  
Maybe the board could fine the violator of the CC&Rs.
My board can fine $250 a day.
SteveM9
(Massachusetts)

Posts:3441


09/15/2019 7:26 AM  
Here we are close to almost half a million dollars spent on legal fees between all parties


Lawyers love it when you spend $500,000 on legal fees when replacing the flooring would only cost $1500
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