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Subject: SHOULD HOAs posses Contractors license and Insurance information?

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MicheleD
(Kentucky)

Posts:1865

08/02/2008 1:05 PM
And yet our attorney and my husband's company's attorney suggested just the opposite. There you go. We may get into semantics about the term "agent" in the legal sense, but the bottom line is that the HOA hired the contractor, the contractor is acting on the HOA's behalf to provide a service in place of the HOA doing it, and has a degree of responsibility for any damage the contractor causes while it was conducting that business or service that the HOA "contracted" with him to do. Why else, then, would our insurance company even care if we hire insured contractors? What do they care if it's going to be all on the other guy, anyway and we have no exposure (therefore, the insurance company has no exposure)? It's not our or our insurance company's business if someone who is simply a "vendor" does or doesn't practice good business sense.

LynnoraR
(Maryland)

Posts:41

08/02/2008 1:18 PM
I apologize but it Brad's comments that I agreed with, not Brian. Yes, it is our understanding that the homeowner will have to go after the contractor and the Association will support him/her. With regards to Michelle's comments, I guess the interpretation is different with her attorney than ours. We would not be in this situation if the attorney advised otherwise.

MicheleD
(Kentucky)

Posts:1865

08/02/2008 1:46 PM
Posted By LynnoraR on 08/02/2008 1:18 PM With regards to Michelle's comments, I guess the interpretation is different with her attorney than ours. We would not be in this situation if the attorney advised otherwise. Just for clarification, our attorney and my husband's company's attorney are two separate attorneys voicing basically the exact same position. Be that as it may, as I said earlier, I sincerely hope this situation is resolved to everyone's satisfaction.

BradP
(Kansas)

Posts:1742

08/02/2008 2:24 PM
If someone is really bored I would be interested to see the viewpoints of 100 attorneys on this because I would be willing to bet the range of opinions would be interesting. Bottomline, anytime you hire someone to do work for you it should state in your contract that they agree to maintain liability insurance throughout the entire project and are responsible for any damage they cause. You should also get a copy of a certificate...beyond that yes as someone hiring a contractor you will take a risk... As for the definition of an agent versus a contractor, here is an agent definition..."One that acts or has the power or authority to act." Here is the definition of a contractor...."A person or business which provides goods or services to another entity under terms specified in a contract. Unlike an employee, a contractor does not work regularly for a company. also called independent contractor." Michele I am not sure how your attorney has interpreted the business to be an agent, but I guess I will have to disagree. The reason you hire a contractor with insurance is for situations like this, if you can prove that you hired a reputable company with insurance then you have done your due diligence and your negligence for damage they caused should be minimal. Of course this is all my opinion...

BradP
(Kansas)

Posts:1742

08/02/2008 2:39 PM
Posted By MaryA1 on 08/02/2008 12:40 PM Posted By BradP on 08/02/2008 8:28 AM Posted By MicheleD on 08/01/2008 6:54 AM Posted By LynnoraR on 08/01/2008 5:02 AM Mary, I'm sure if it came down to it, this can be pursued legally. That is not necessarily the issue here however; you bring up an interesting point that we (the Assn) can argue. The whole idea of hiring someone who is licensed and insured is so that IF things like this happen on personal property, the owner can pursue action through their insurance company and/or legally. We believe that the Assn is responsible for the contractor to the extent that we conduct an 'investigation' into what happened. We cannot be held financially responsible for actions or mishaps that THEY are responsible for. The owner must pursue action on behalf of his/her property. We will do everything in our power to provide the owner with our correspondence and resolution efforts on behalf of the incident, we'll be willing to provide sworn statements (if needed) and anything else the owner needs to rectify this situation but per other guidance that was given to us; it is not our direct responsiblity to fix the owners damaged fence. I'm not so sure that position would hold up if challenged. The contractor was hired by the HOA to do HOA work. He is, therefore, an agent of the HOA. It is very possible for the HOA to be held directly responsible for the actions of the contractor during the performance of his work for you. This is the reason why it's important to be sure that contractors are bonded and/or appropriately licensed and insured. He was not out there at his own request, nor was he performing work at the request of the homeowner whose fence was damaged. I would disagree with your approach Michele. The contractor is NOT an agent of the association. He is a vendor, hired to do a service for the association. He was not acting on behalf of the association. That would be like saying a contractor hired to cut my grass is my agent, they would not be, they are a contractor hired to do a job. For this person to say they are not responsible for the damage is ludicrous...What is his defense, the HOA MADE me go out an mow the lawn? It was his choice to be out there, he didn't have to perform the job. Now, I do agree with the fact that if they refuse to pay the association could be sued, however, I would be suprised if any judge would rule against the HOA in this case. That would be you hiring someone to build a house and the contractor drops a truss on your neighbors car by accident, are you responsible? They did not cause the damage, if the contractor refuses to pay up I would suggest the homeowner take them to small claims court and ask the association to be a witness or provide a notarized statement on their behalf. Brad, I guess we'll have to agree to disagree on this one. I share Michelle's opinion that the contractor is an agent of the assn. He was hired to perform a service and in doing so he caused damage to another homeowner's property. The assn. is the point of contact for the homeowner. If the contractor refuses to pay for the damages, the assn is on the hook because they hired him. It would be up to the assn to go after the contractor. He didn't perform his job as he was hired to do. I doubt the contract stated if he damaged anyone's property while performing his job it would be OK with the assn! Mary: If they are an agent, what power do they have of the associations, or what ability have they been given by the association? None...they were hired to perform a service, therefore they are a contractor. IF the HOA was negligent and did not check background or insurance then yes I agree the HOA could be on the hook for some of the damages due to negligence.

MaryA1
(Arizona)

Posts:2498

08/03/2008 8:05 AM
Brad, Perhaps the proper term to use is NOT agent -- I'll concede to that. However, IMO, the HOA hired the contractor and if he damaged another h/o's property while performing the work he was contracted to do, then the assn is resp. for taking care of the problem. The h/o would have a claim against the assn and the assn, in turn, would have a claim against the contractor. This is why, as you and other have said, the assn should only hire licensed contractors. I agree, 10 attorneys would probably get you 10 different opinions. I'm not an attorney, but that's my opinion -- and I'm stickin' to it! LOL

MaryA1
(Arizona)

Posts:2498

08/03/2008 8:12 AM
Posted By LynnoraR on 08/02/2008 1:18 PM I apologize but it Brad's comments that I agreed with, not Brian. Yes, it is our understanding that the homeowner will have to go after the contractor and the Association will support him/her. With regards to Michelle's comments, I guess the interpretation is different with her attorney than ours. We would not be in this situation if the attorney advised otherwise. Lynorra, Well, now I find this very interesting. That is contrary to what you said in an earlier post. That's why I was confused at your statement saying you agreed with (sic) Brian. You said: "I will agree with Brian on this because that is also the impression that was given to us by an attorney when we consulted with them about this. We were advised to go after the contractor (which we did) and be prepared to support the homeowner at all costs (which we are)." Please enlighten us. Did your attorney tell you the assn should go after the contractor, or did your attorney tell you the h/o should go after the contractor?

LynnoraR
(Maryland)

Posts:41

08/03/2008 9:18 AM
Mary, This is getting a little heavier than I thought but I appreciate all the good insight. My intention with this positing was to see how HOAs around the country will handle this. Our position on this situation is that we are waiting to obtain the license and insurance information from the contractor NLT the end of this week. If we find that he is not licensed and insured, we will pay the homeowner for the damages and take the contractor to court for false representation and also the damages. If we find that he is licensed and insured, we will pass along his insurance information to the homeowner and support them however they wish to proceed from there. I do not recall contradicting myself in any of the postings. As I've stated all along, the consultation we received was that IF we hired a contractor with valid license and insurance and while mowing the common areas he damaged private property, it will not automatically be assumed that the HOA is held responsible. If it is found that he did not have the proper paperwork in place then yes, we would definitely be responsible. It was our duty to ensure that the community had someone legit working on the property. It was our duty to notify the homeowner, initiate the investigation into what happen and keep the homeowner in the loop with everything. If the contractor agreed to the damages and pay for them then everyone would be happy. If the contractor does not want to settle this amicably, then the homeowner could pursue this in small claims. It especially depended on the amount of damage because at more times it would cost more to hire the attorney than the actual award itself. The judge could determine at that hearing who would ultimately be responsible for paying for the damages.

LynnoraR
(Maryland)

Posts:41

08/03/2008 9:26 AM
I'd like to clarify my statement which may have caused the confustion. When I said we were told to "go after the contractor" that meant it was our responsiblity to contact him directly and find out exactly what happened and obtain all information to support what witnesses saw, heard, pictures taken, etc. We did all of this on behalf of the homeowner and we are trying to bring this to a peaceful resolve. The Homeowner has yet to say one word to the contractor about this and they told us they are satisified with the documentation we provided to them showing all of our communication attempts. Can the h/o change their minds and come after us instead? Sure, especially if we find that the contractor does not have insurance and/or licenses.

MaryA1
(Arizona)

Posts:2498

08/03/2008 9:33 AM
Lynorre, You said: "If we find that he is licensed and insured, we will pass along his insurance information to the homeowner and support them however they wish to proceed from there." By 'support', do you mean the assn is prepared to reimb. the h/o for any out-of-pocket expenses he might incur if he has to take the contractor to small claims court? And, if the assn is willing to 'support' the h/o in this, why doesn't the board just take care of the whole mess? I really don't understand why the h/o has to get involved at all. Whether or not the contractor is licensed, IMO, is not the issue. The issue is that he was working for the assn. But, of course, the board should do as your attorney advises. I'm not an attorney; these are only my opinions. I'm sure your attorney has advised you on what is legal; but I wonder if he has said anything about what is morally or ethically right.

LynnoraR
(Maryland)

Posts:41

08/03/2008 9:45 AM
Mary, Read my earlier posting when I said we already had the discussion about "doing the right thing". The right thing would be to just suck this up, pay the homeowner and sue the contractor. Once that is done, we would have to disclose to the homeowners (who make up the Association) how their money was spent to resolve this. Now... there goes the can of worms being opened! IMO, if we do the right thing for this owner, what is stopping other homeowners for filing 'alleged' claims for other damages to get things fixed??? Don't say that won't happen because I have no doubt in my mind that it will; I know the people in my community and some of them DEFINITELY think like that. If we did this for one homeowner then we would have to do this for all of them... whether they are lying or not...no exceptions! We are trying to remove all personal feelings about this and stick to what will ultimately hold up in a court of law. Support means show up in court with the h/o, provide sworn statements and let the judge know we did not sit on this issue and let the homeowner deal it it on their own. If the judge says to the Association... Pay the owner and take the contractor to court, at least we will know for certain how to deal with this in the future.

BradP
(Kansas)

Posts:1742

08/03/2008 9:53 AM
Posted By MaryA1 on 08/03/2008 9:33 AM Lynorre, You said: "If we find that he is licensed and insured, we will pass along his insurance information to the homeowner and support them however they wish to proceed from there." By 'support', do you mean the assn is prepared to reimb. the h/o for any out-of-pocket expenses he might incur if he has to take the contractor to small claims court? And, if the assn is willing to 'support' the h/o in this, why doesn't the board just take care of the whole mess? I really don't understand why the h/o has to get involved at all. Whether or not the contractor is licensed, IMO, is not the issue. The issue is that he was working for the assn. But, of course, the board should do as your attorney advises. I'm not an attorney; these are only my opinions. I'm sure your attorney has advised you on what is legal; but I wonder if he has said anything about what is morally or ethically right. Mary: Seriously...you wonder why the ho should be involved? Maybe I am not understanding what has happened here but the plaintiff in the case is the ho because their property was damaged...the defendant is the contractor because they did the damage. I didn't take law so maybe I am wrong but for the HOA to just pay this claim is outrageous and ridicously in my opinion. Do you remember the thread about the mailbox that was damaged and someone wanted it fixed by the HOA because they advertised a garage sale? What about the drunk driver that plows into the front of a home, they were driving on HOA streets the HOA should pay right? Throw morally and ethically out the window, think realistic. There are many times in life where morally we would love to help, realistically we can't. I would love to feed all the homeless people in this city, but realistically I can't, but am I wrong? I hate to get so fired up on this and it is nothing personal, but I am so tired of people in this world passing blame. What defense does the contractor have, I was hired to do it, bull....accept responsibility for our actions and deal with it. It is a sad world if we can't hire someone without worrying that their every action we are responsible for.

LynnoraR
(Maryland)

Posts:41

08/03/2008 10:08 AM
Do you know what's really sad about this situation.... the contractor KNOW he's responsible and he is LYING through his teeth. His defense was that the fence was already damaged. I am so heavily involved with this because I know for a fact that the owner just had the entire front and back fence refurbished and we were back there on July 1st preparing our backyards for the holiday. This incident happened on July 3rd. We know for a fact her fence was not tore up like that. The part that ticks me off the most is that the h/o had her fence repaired already. She called a friend out and he came and fixed it for her. Do you want to know what she paid?????? $100 to have it fixed. THATS ALL!! Now... some would say it's moral and right to just pay her and go after the contractor but I don't think we (the Association) should be held responsible for other people's mistakes!! The contractor is being cheap and lying their butts off. I would not mind seeing this go to court so the 7 witnesses that we have (including the h/o contractor that did her fence) can show up and prove what liar he is!! We did not tell him to run up against her fence while cutting the grass. He was to mow the 'COMMON AREAS' in the back of the houses, which we provided him with our Towns outline of where the property line is for common areas and back yard areas. We feel he was rushing and trying to get out of there for the holdiay and as a result, jacked up his job!! If you want to talk about doing the right thing... I believe we are doing the right thing by supporting the h/o. Why does the contractor get to get away with not doing the right thing???

LynnoraR
(Maryland)

Posts:41

08/03/2008 1:34 PM
I referred to the Maryland Homeowners Association Act to define what exactly an 'agent' would mean in our situation: "§ 5-406. Personal liability - Agents of certain associations or organizations. a) Definitions.- (1) In this section the following words have the meanings indicated. (2) (i) "Agent of an association or organization" means a director, officer, trustee, employee, or volunteer of an association or organization who provides services or performs duties on behalf of the association or organization. (ii) "Agent of an association or organization" does not include an independent contractor who provides services or performs duties on behalf of the association or organization on a contractual basis." As you can see in the state of MD, the contractor is definitely not considered an 'agent' of the Assn. He is such deemed an "independent contractor".

MaryA1
(Arizona)

Posts:2498

08/04/2008 4:49 PM
Posted By BradP on 08/03/2008 9:53 AM Posted By MaryA1 on 08/03/2008 9:33 AM Lynorre, You said: "If we find that he is licensed and insured, we will pass along his insurance information to the homeowner and support them however they wish to proceed from there." By 'support', do you mean the assn is prepared to reimb. the h/o for any out-of-pocket expenses he might incur if he has to take the contractor to small claims court? And, if the assn is willing to 'support' the h/o in this, why doesn't the board just take care of the whole mess? I really don't understand why the h/o has to get involved at all. Whether or not the contractor is licensed, IMO, is not the issue. The issue is that he was working for the assn. But, of course, the board should do as your attorney advises. I'm not an attorney; these are only my opinions. I'm sure your attorney has advised you on what is legal; but I wonder if he has said anything about what is morally or ethically right. Mary: Seriously...you wonder why the ho should be involved? Maybe I am not understanding what has happened here but the plaintiff in the case is the ho because their property was damaged...the defendant is the contractor because they did the damage. I didn't take law so maybe I am wrong but for the HOA to just pay this claim is outrageous and ridicously in my opinion. Do you remember the thread about the mailbox that was damaged and someone wanted it fixed by the HOA because they advertised a garage sale? What about the drunk driver that plows into the front of a home, they were driving on HOA streets the HOA should pay right? Throw morally and ethically out the window, think realistic. There are many times in life where morally we would love to help, realistically we can't. I would love to feed all the homeless people in this city, but realistically I can't, but am I wrong? I hate to get so fired up on this and it is nothing personal, but I am so tired of people in this world passing blame. What defense does the contractor have, I was hired to do it, bull....accept responsibility for our actions and deal with it. It is a sad world if we can't hire someone without worrying that their every action we are responsible for. Brad, Please don't put words in my mouth. Show me where I said the contractor should not pay for the damages? Your analogies are ridiculous and bear no semblance whatsoever to what happened here! This damage was caused by a contractor working for the HOA. The person who hit the mailbox was coming into the community for a garage sale; he wasn't working for the assn. I don't believe the drunken driver was employed by the assn either. Guess we're all entitle to our opinion and that's mine.

BradP
(Kansas)

Posts:1742

08/04/2008 4:56 PM
Mary: I didn't put words in anyones mouth...below are clips of your posts on this thread, they all point to the fact the HOA should pay...no where did you say the contractor should pay. My analagies are not ridiculous...Making excuses for the contractor is ridiculous Legally speaking, IMO, the HOA is responsible to the homeowner and the contractor is responsible to the HOA. The contractor is performing work for the assn; therefore the assn is resp. for any damages committed by the contractor. I'll concede to that. However, IMO, the HOA hired the contractor and if he damaged another h/o's property while performing the work he was contracted to do, then the assn is resp. for taking care of the problem. I really don't understand why the h/o has to get involved at all. Whether or not the contractor is licensed, IMO, is not the issue. The issue is that he was working for the assn.

LynnoraR
(Maryland)

Posts:41

08/04/2008 5:01 PM
Posted By BradP on 08/04/2008 4:56 PM Mary: I didn't put words in anyones mouth...below are clips of your posts on this thread, they all point to the fact the HOA should pay...no where did you say the contractor should pay. My analagies are not ridiculous...Making excuses for the contractor is ridiculous Legally speaking, IMO, the HOA is responsible to the homeowner and the contractor is responsible to the HOA. The contractor is performing work for the assn; therefore the assn is resp. for any damages committed by the contractor. I'll concede to that. However, IMO, the HOA hired the contractor and if he damaged another h/o's property while performing the work he was contracted to do, then the assn is resp. for taking care of the problem. I really don't understand why the h/o has to get involved at all. Whether or not the contractor is licensed, IMO, is not the issue. The issue is that he was working for the assn. I hope I was able to clear up any confusion as to how the state of MD views the term 'agents' in HOAs. Earlier, I posted excerpts from the MD Homeowners Association Act, which clearly shows that the landscaper (independent contractor) is NOT considered an agent for the Assn.

LynnoraR
(Maryland)

Posts:41

08/04/2008 5:01 PM
Posted By BradP on 08/04/2008 4:56 PM Mary: I didn't put words in anyones mouth...below are clips of your posts on this thread, they all point to the fact the HOA should pay...no where did you say the contractor should pay. My analagies are not ridiculous...Making excuses for the contractor is ridiculous Legally speaking, IMO, the HOA is responsible to the homeowner and the contractor is responsible to the HOA. The contractor is performing work for the assn; therefore the assn is resp. for any damages committed by the contractor. I'll concede to that. However, IMO, the HOA hired the contractor and if he damaged another h/o's property while performing the work he was contracted to do, then the assn is resp. for taking care of the problem. I really don't understand why the h/o has to get involved at all. Whether or not the contractor is licensed, IMO, is not the issue. The issue is that he was working for the assn. I hope I was able to clear up any confusion as to how the state of MD views the term 'agents' in HOAs. Earlier, I posted excerpts from the MD Homeowners Association Act, which clearly shows that the landscaper (independent contractor) is NOT considered an agent for the Assn.

MicheleD
(Kentucky)

Posts:1865

08/04/2008 5:12 PM
Well, I happen to agree with her. It's very clear from her comments that she does not absolve the contractor of his liability. And your attempt to imply that she's "making excuses for the contractor," as though somehow absolving him of any responsibility it ludicrous. "Legally speaking, IMO, the HOA is responsible to the homeowner and the contractor is responsible to the HOA." "The h/o would have a claim against the assn and the assn, in turn, would have a claim against the contractor. This is why, as you and other have said, the assn should only hire licensed contractors. " " The assn. is the point of contact for the homeowner. If the contractor refuses to pay for the damages, the assn is on the hook because they hired him. It would be up to the assn to go after the contractor. He didn't perform his job as he was hired to do. I doubt the contract stated if he damaged anyone's property while performing his job it would be OK with the assn! " I think it's just plain ridiculous to ask the homeowner to go after the contractor alone. It's lazy and sends the message that the HOA is abandoning its resident. But if you want to put all the aggravation and hassle on the homeowner and maintain that "It's not my job, man" attitude for the HOA, you go right ahead. The homeowner's only involvement was having his assets the path of a contractor the HOA hired. Yea, dude. Leave it all on him. In addition, I know in situations where the City hires subcontractors to perform work on roads or mowing City-owned property, whenever those subcontractors cause damage to taxpayer's property, the City handles the situation and either acts as the go-between to make sure the subcontractor fixes the problem or repairs the property and then gets the subcontractor to reimburse the City.

MicheleD
(Kentucky)

Posts:1865

08/04/2008 5:16 PM
Posted By LynnoraR on 08/04/2008 5:01 PM I hope I was able to clear up any confusion as to how the state of MD views the term 'agents' in HOAs. Earlier, I posted excerpts from the MD Homeowners Association Act, which clearly shows that the landscaper (independent contractor) is NOT considered an agent for the Assn. Oh good grief, I've already said that we can split hairs on the "legal" definition of "agent" and Mary has conceded the the actual term "agent" might not be the correct one, but it seems an awful lot of energy is being invested in the HOA taking the low road. "Not my responsibility." And, given the aggravation the homeowner may well have to go through, and given that the HOA is still ultimately responsible for the actions of people they hire to do work for them, then, by all means. Step aside and let the two duke it out. It will bring a wonderful bit of PR and great reputation points for the HOA, if nothing else.

LynnoraR
(Maryland)

Posts:41

08/04/2008 5:26 PM
Posted By MicheleD on 08/04/2008 5:16 PM Posted By LynnoraR on 08/04/2008 5:01 PM I hope I was able to clear up any confusion as to how the state of MD views the term 'agents' in HOAs. Earlier, I posted excerpts from the MD Homeowners Association Act, which clearly shows that the landscaper (independent contractor) is NOT considered an agent for the Assn. Oh good grief, I've already said that we can split hairs on the "legal" definition of "agent" and Mary has conceded the the actual term "agent" might not be the correct one, but it seems an awful lot of energy is being invested in the HOA taking the low road. "Not my responsibility." And, given the aggravation the homeowner may well have to go through, and given that the HOA is still ultimately responsible for the actions of people they hire to do work for them, then, by all means. Step aside and let the two duke it out. It will bring a wonderful bit of PR and great reputation points for the HOA, if nothing else. It's that type of sarcastic one-sided opinions that make my VOLUNTEER job not even worth the hassle! If you think for one minute I am in this for some "PR and a great reputation" you are sadly mistaken. To be perfectly honest, if our HOA wanted to take the "low road" then we could have simply kept quiet and never said a thing to the homeowner! They were on vacation when this happened so we could have kept our mouth shut and let them figure out who tore up their fence! We have been trying to bring this to a peaceful resolve since DAY ONE and under no circumstances do we want to pay for the mistakes of others! The homeowner is not in this alone and have our support. If you and Mary really want to get down and dirty with this I ask that you please familiarize yourself with The Maryland Statures, Title 11B Maryland Homeowners Association Act. It is within those guidelines that we are maintaining our position as to let the homeowner pursue the contractor and we support the homeowner with our statements and documentation.

BradP
(Kansas)

Posts:1742

08/04/2008 6:24 PM
Posted By MicheleD on 08/04/2008 5:16 PM Posted By LynnoraR on 08/04/2008 5:01 PM I hope I was able to clear up any confusion as to how the state of MD views the term 'agents' in HOAs. Earlier, I posted excerpts from the MD Homeowners Association Act, which clearly shows that the landscaper (independent contractor) is NOT considered an agent for the Assn. Oh good grief, I've already said that we can split hairs on the "legal" definition of "agent" and Mary has conceded the the actual term "agent" might not be the correct one, but it seems an awful lot of energy is being invested in the HOA taking the low road. "Not my responsibility." And, given the aggravation the homeowner may well have to go through, and given that the HOA is still ultimately responsible for the actions of people they hire to do work for them, then, by all means. Step aside and let the two duke it out. It will bring a wonderful bit of PR and great reputation points for the HOA, if nothing else. Actually it is a huge difference if they are an agent or a contractor, an agent is authorized to make decisions and actions on behalf of the HOA, a contractor isn't...you were the one who was adament that they were an agent. No one has ever suggested (Me included) that the HOA abandon the homeowner. Even the original poster has been adament the HOA will be right there to help as needed. And, the if the HOA was smart there would be an indemnification clause in their contract with the contractor to avoid getting dragged into litigation. It is funny to me because there have been so many arguments on here about how an HOA is a business and should be run as such, but here you have two people who appear to be heavily involved in their HOA ready to give a handout without even trying to get the contractor to pay for it. Bottomline the beef is between the HO and the Contractor, if the contractor bails then the HOA may be on the line (as I stated before) or will have a decision to make.

BradP
(Kansas)

Posts:1742

08/04/2008 6:28 PM
Posted By MicheleD on 08/04/2008 5:12 PM Well, I happen to agree with her. It's very clear from her comments that she does not absolve the contractor of his liability. And your attempt to imply that she's "making excuses for the contractor," as though somehow absolving him of any responsibility it ludicrous. "Legally speaking, IMO, the HOA is responsible to the homeowner and the contractor is responsible to the HOA." "The h/o would have a claim against the assn and the assn, in turn, would have a claim against the contractor. This is why, as you and other have said, the assn should only hire licensed contractors. " " The assn. is the point of contact for the homeowner. If the contractor refuses to pay for the damages, the assn is on the hook because they hired him. It would be up to the assn to go after the contractor. He didn't perform his job as he was hired to do. I doubt the contract stated if he damaged anyone's property while performing his job it would be OK with the assn! " I think it's just plain ridiculous to ask the homeowner to go after the contractor alone. It's lazy and sends the message that the HOA is abandoning its resident. But if you want to put all the aggravation and hassle on the homeowner and maintain that "It's not my job, man" attitude for the HOA, you go right ahead. The homeowner's only involvement was having his assets the path of a contractor the HOA hired. Yea, dude. Leave it all on him. In addition, I know in situations where the City hires subcontractors to perform work on roads or mowing City-owned property, whenever those subcontractors cause damage to taxpayer's property, the City handles the situation and either acts as the go-between to make sure the subcontractor fixes the problem or repairs the property and then gets the subcontractor to reimburse the City. You are doing the exact thing that you are lambasting me for, I never said leave him high and dry, not sure what has gotten you are wound up, but your attacks on Nicole in another thread and now in this one are certainly in violation of the posting rules here....I came here for spirited debate and not its "my way or the highway" attitude.

MaryA1
(Arizona)

Posts:2498

08/04/2008 8:27 PM
Posted By BradP on 08/04/2008 4:56 PM Mary: I didn't put words in anyones mouth...below are clips of your posts on this thread, they all point to the fact the HOA should pay...no where did you say the contractor should pay. My analagies are not ridiculous...Making excuses for the contractor is ridiculous Legally speaking, IMO, the HOA is responsible to the homeowner and the contractor is responsible to the HOA. The contractor is performing work for the assn; therefore the assn is resp. for any damages committed by the contractor. I'll concede to that. However, IMO, the HOA hired the contractor and if he damaged another h/o's property while performing the work he was contracted to do, then the assn is resp. for taking care of the problem. I really don't understand why the h/o has to get involved at all. Whether or not the contractor is licensed, IMO, is not the issue. The issue is that he was working for the assn. On 8/3/08 at 9:33 am you posted: Mary: Seriously...you wonder why the ho should be involved? Maybe I am not understanding what has happened here but the plaintiff in the case is the ho because their property was damaged...the defendant is the contractor because they did the damage. I didn't take law so maybe I am wrong but for the HOA to just pay this claim is outrageous and ridicously in my opinion. Do you remember the thread about the mailbox that was damaged and someone wanted it fixed by the HOA because they advertised a garage sale? What about the drunk driver that plows into the front of a home, they were driving on HOA streets the HOA should pay right? Throw morally and ethically out the window, think realistic. There are many times in life where morally we would love to help, realistically we can't. I would love to feed all the homeless people in this city, but realistically I can't, but am I wrong? I hate to get so fired up on this and it is nothing personal, but I am so tired of people in this world passing blame. What defense does the contractor have, I was hired to do it, bull....accept responsibility for our actions and deal with it. It is a sad world if we can't hire someone without worrying that their every action we are responsible for. Brad, I don't know what's worse, someone putting words in my mouth to make me look bad or that same person taking my comments out of context just to prove he DIDN'T put words in my mouth! I'm not going to take the time to post my exact comments. I KNOW WHAT I SAID!!! And your analogies ARE ridiculous and have NOTHING whatsoever to do with this case. In your msg of 8/3 you make it sound as though I want to absolve the contractor of all blame ("I am so tired of people in this world passing blame"). I never, ever said that!

MaryA1
(Arizona)

Posts:2498

08/04/2008 9:18 PM
Posted By LynnoraR on 08/04/2008 5:26 PM If you and Mary really want to get down and dirty with this I ask that you please familiarize yourself with The Maryland Statures, Title 11B Maryland Homeowners Association Act. It is within those guidelines that we are maintaining our position as to let the homeowner pursue the contractor and we support the homeowner with our statements and documentation. Lynnora, Well, I took your suggestion and I read the MD HOA Act, which is in Title 11B. I read through the whole act and nothing was stated about contractors, agents, etc., etc. What you posted was referenced as Title 5-406. I couldn't find that statute, but it isn't in the MD HOA Act. However, I do believe the real issue is much deeper, as evidenced in your post of 8/3/08, in which you said: "The right thing would be to just suck this up, pay the homeowner and sue the contractor. Once that is done, we would have to disclose to the homeowners (who make up the Association) how their money was spent to resolve this. Now... there goes the can of worms being opened! IMO, if we do the right thing for this owner, what is stopping other homeowners for filing 'alleged' claims for other damages to get things fixed??? Don't say that won't happen because I have no doubt in my mind that it will; I know the people in my community and some of them DEFINITELY think like that. If we did this for one homeowner then we would have to do this for all of them... whether they are lying or not...no exceptions! We are trying to remove all personal feelings about this and stick to what will ultimately hold up in a court of law." "Open up a can of worms"????? "If we did this for one homeowner then we would have to do this for all of them... whether they are lying or not...no exceptions!" I'm shocked that the board would feel this way. I have to wonder exactly where your heads are. You're afraid to do the right thing because you'll have to discuss it in an open meeting then everyone will know about it and they can all jump on the bandwagon to what? Free home improvements??? I have nothing more to say about this. I think you've said it all.

MaryA1
(Arizona)

Posts:2498

08/04/2008 9:18 PM
Posted By LynnoraR on 08/04/2008 5:26 PM If you and Mary really want to get down and dirty with this I ask that you please familiarize yourself with The Maryland Statures, Title 11B Maryland Homeowners Association Act. It is within those guidelines that we are maintaining our position as to let the homeowner pursue the contractor and we support the homeowner with our statements and documentation. Lynnora, Well, I took your suggestion and I read the MD HOA Act, which is in Title 11B. I read through the whole act and nothing was stated about contractors, agents, etc., etc. What you posted was referenced as Title 5-406. I couldn't find that statute, but it isn't in the MD HOA Act. However, I do believe the real issue is much deeper, as evidenced in your post of 8/3/08, in which you said: "The right thing would be to just suck this up, pay the homeowner and sue the contractor. Once that is done, we would have to disclose to the homeowners (who make up the Association) how their money was spent to resolve this. Now... there goes the can of worms being opened! IMO, if we do the right thing for this owner, what is stopping other homeowners for filing 'alleged' claims for other damages to get things fixed??? Don't say that won't happen because I have no doubt in my mind that it will; I know the people in my community and some of them DEFINITELY think like that. If we did this for one homeowner then we would have to do this for all of them... whether they are lying or not...no exceptions! We are trying to remove all personal feelings about this and stick to what will ultimately hold up in a court of law." "Open up a can of worms"????? "If we did this for one homeowner then we would have to do this for all of them... whether they are lying or not...no exceptions!" I'm shocked that the board would feel this way. I have to wonder exactly where your heads are. You're afraid to do the right thing because you'll have to discuss it in an open meeting then everyone will know about it and they can all jump on the bandwagon to what? Free home improvements??? I have nothing more to say about this. I think you've said it all.

LynnoraR
(Maryland)

Posts:41

08/05/2008 6:49 AM
This thread has turned into a bunch of sarcastic one-sided OPINIONS!! Thank God for opinions because you are entitled to think any way you please. IT MAKES NO DIFFERENCE WHAT YOUR OPINION OF WHAT I SAID OR ANYONE ELSE SAID!! At the end of the day... we are going to DO WHATS RIGHT in this community!! This posting was never meant for anyone to really agree on anything, it was opening up a forum just to see how this would be handled in other HOAs. It was NEVER intended for you to tell us how to finalize this decision and whos right and whos wrong!!! Who are you to pass judgement on how this should be handled?? All things are a matter of interpretation and because someone is interpreting something a different way, does not give anyone the right to be snapping and typing with so much sarcasm and judgemental tones! Mary--Doing whats right is not about being AFRAID to "open up a can of worms", it's more important that we don't pay for someone else mistakes. Thats it... bottom line! Don't waste your time in quoting me because I know exactly what I said. Furthermore, if you truly read the Maryland Statures, you would have clearly found that Title 5-406 IS UNDER THE MD ASSOCIATION ACT in addition to other titles under the Maryland Statures that are relevant to our case. This thread has turned into who's getting their final words in and since I am the originator who posted it, I just want to thank you all anyway for your comments. I'm really done with this. Did it help me...NO... it just made me even more weary of dedicating my time to an Assn that will forever remain a THANKLESS JOB!!! I bust my butt to work with others to try and do the right thing for everyone in my community but there will always be a few (examples proven by the individuals in this posting) that will make my efforts a living hell!

BradP
(Kansas)

Posts:1742

08/05/2008 8:04 AM
Posted By MaryA1 on 08/04/2008 8:27 PM Posted By BradP on 08/04/2008 4:56 PM Brad, I don't know what's worse, someone putting words in my mouth to make me look bad or that same person taking my comments out of context just to prove he DIDN'T put words in my mouth! I'm not going to take the time to post my exact comments. I KNOW WHAT I SAID!!! And your analogies ARE ridiculous and have NOTHING whatsoever to do with this case. In your msg of 8/3 you make it sound as though I want to absolve the contractor of all blame ("I am so tired of people in this world passing blame"). I never, ever said that! Mary: I am puzzled as to your defensiveness...I have never put words in your mouth, I have not twisted your words. I have interpreted your words based on how they were written, that is my opinion. My analogies are not ridiculous, they were made to provoke thought on this issue, how far does HOA liability extend? If we hire a contractor to perform a job, are we responsible from the time they leave their house until they are home because they wouldn't have driven that course if we had not hired them? I have stated I believe the contractor is liable, they are adults, they damaged, they pay... Furthermore, please go back and reread my post of 8/3...I think you are so wrapped up in the fact that I am out to get you or something that you failed to see my comment about being tired of people in this world passing blame was a generic statement posted in reference to the sue happy society we live in. OK...I am done with this thread...sorry to all for dragging it out.

MicheleD
(Kentucky)

Posts:1865

08/05/2008 10:19 AM
Posted By LynnoraR on 08/04/2008 5:26 PM Posted By MicheleD on 08/04/2008 5:16 PM Posted By LynnoraR on 08/04/2008 5:01 PM I hope I was able to clear up any confusion as to how the state of MD views the term 'agents' in HOAs. Earlier, I posted excerpts from the MD Homeowners Association Act, which clearly shows that the landscaper (independent contractor) is NOT considered an agent for the Assn. Oh good grief, I've already said that we can split hairs on the "legal" definition of "agent" and Mary has conceded the the actual term "agent" might not be the correct one, but it seems an awful lot of energy is being invested in the HOA taking the low road. "Not my responsibility." And, given the aggravation the homeowner may well have to go through, and given that the HOA is still ultimately responsible for the actions of people they hire to do work for them, then, by all means. Step aside and let the two duke it out. It will bring a wonderful bit of PR and great reputation points for the HOA, if nothing else. It's that type of sarcastic one-sided opinions that make my VOLUNTEER job not even worth the hassle! If you think for one minute I am in this for some "PR and a great reputation" you are sadly mistaken. To be perfectly honest, if our HOA wanted to take the "low road" then we could have simply kept quiet and never said a thing to the homeowner! They were on vacation when this happened so we could have kept our mouth shut and let them figure out who tore up their fence! We have been trying to bring this to a peaceful resolve since DAY ONE and under no circumstances do we want to pay for the mistakes of others! The homeowner is not in this alone and have our support. If you and Mary really want to get down and dirty with this I ask that you please familiarize yourself with The Maryland Statures, Title 11B Maryland Homeowners Association Act. It is within those guidelines that we are maintaining our position as to let the homeowner pursue the contractor and we support the homeowner with our statements and documentation. I didn't say you were in it for the PR. Now who's putting words in whose mouth? I agree the comment about the PR was sarcastic and I apologize for that tone, but I was not far from the truth if some News Troubleshooter gets involved and the homeowner shares how they were left to handle the situation. Even if something like that doesn't happen, it has the potential to send a message to the rest of the homeowners that the HOA doesn't step up to the plate. Their contractor made a mess and they are letting the homeowner deal with the hassle instead of taking care of it themselves. It was a reality check. If the HOA wants to leave the homeowner to deal with the contractor, so be it. It's great that you hooked the two of them up to work it out. I'm glad they have your support. That's the least that could be done. But I have said repeatedly that in two similar instances, with two separate entities (our HOA and my husband's company), that we have been given exactly the opposite advice by two completely different attorneys. So there are obviously quite a few ways to handle this, and it just seems that leaving the homeowner to have to struggle through the aggravation, time, and energy combating the contractor, who may or may not make it easy to pay, is not the way we would have left it.

MicheleD
(Kentucky)

Posts:1865

08/05/2008 10:32 AM
Posted By BradP on 08/04/2008 6:28 PM Posted By MicheleD on 08/04/2008 5:12 PM Well, I happen to agree with her. It's very clear from her comments that she does not absolve the contractor of his liability. And your attempt to imply that she's "making excuses for the contractor," as though somehow absolving him of any responsibility it ludicrous. "Legally speaking, IMO, the HOA is responsible to the homeowner and the contractor is responsible to the HOA." "The h/o would have a claim against the assn and the assn, in turn, would have a claim against the contractor. This is why, as you and other have said, the assn should only hire licensed contractors. " " The assn. is the point of contact for the homeowner. If the contractor refuses to pay for the damages, the assn is on the hook because they hired him. It would be up to the assn to go after the contractor. He didn't perform his job as he was hired to do. I doubt the contract stated if he damaged anyone's property while performing his job it would be OK with the assn! " I think it's just plain ridiculous to ask the homeowner to go after the contractor alone. It's lazy and sends the message that the HOA is abandoning its resident. But if you want to put all the aggravation and hassle on the homeowner and maintain that "It's not my job, man" attitude for the HOA, you go right ahead. The homeowner's only involvement was having his assets the path of a contractor the HOA hired. Yea, dude. Leave it all on him. In addition, I know in situations where the City hires subcontractors to perform work on roads or mowing City-owned property, whenever those subcontractors cause damage to taxpayer's property, the City handles the situation and either acts as the go-between to make sure the subcontractor fixes the problem or repairs the property and then gets the subcontractor to reimburse the City. You are doing the exact thing that you are lambasting me for, I never said leave him high and dry, not sure what has gotten you are wound up, but your attacks on Nicole in another thread and now in this one are certainly in violation of the posting rules here....I came here for spirited debate and not its "my way or the highway" attitude. Getting a little bit peripheral on us? I didn't "attack" anyone. I bent over backwards to make it clear that I was not getting personal with Nicole, merely that I was reading into her posts a personal vendetta, nor was I the only one that picked up on it. I didn't call her names; I didn't "get on her like white on rice," but only suggested she do some self-reflection and look at her motives. She does have concrete issues to deal with, and it will be much easier, more successful and less likely to be hold up through close examination if she makes sure she clears any personal agenda away. How is that an "attack"? And yes, I did get very "wound up" when you insisted on twisting Mary's comments out of all their context. That in itself was pretty sleazy, and then you try to claim that's not what you did. So be it. Both of us acknowledged that we were not using the term "agent" in the strict legal sense. For me, at least, I can't speak for Mary, it was the moral sense. Lynnora, I sincerely apologize if in my frustration I communicated anything less than concern for your situation. I, too, was only trying to respond to your intent of wanting to know how other HOAs would handle a similar situation. I feel that's what I did. Our HOA had a similar scenario, our attorney advised us 180-degrees to what yours did. The "argument" erupted over the use of the word "agent," and none of us here has any business making it about that one word.

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