Get 1 year of free community web site hosting from Community123.com!
Thursday, September 24, 2020











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Is the HOA responsible for owner negligence?
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
NathanL2
(California)

Posts:27


08/20/2020 10:53 PM  
Hello, I joined the HOA Board about a year ago. Our roof is in need of replacing, and we have collected a special assessment to replace the roof. A resident passed away recently and was extremely old and had not gone upstairs in years. At some point they had leaks and it's led to massive water damage and mold. Board agreed to paying a portion for mold abatement and agreed to pay for water damage at a little under $10K. Now the estimate is more detailed and water damage was more extensive than thought and the bill is more than $20K as it now includes fixing upstairs bathroom cabinet damage and tub damage, and removing and replacing light fixtures, etc.

Is the HOA responsible for all of this or does the Board have the ability to put some of this on the owner? Our management company says that generally damage from a leaky roof is our responsibility. But this damage accumulated through possibly more than a decade of rot which the owner never informed anyone about. Every leak has been addressed quickly in my time on the Board. We are going to get some more estimates.

Should we just pay it all (this would require an additional assessment as we already collected for the roof) or negotiate with the owner? Any advice is very welcome

MelissaP1
(Alabama)

Posts:9532


08/21/2020 4:26 AM  
Are you a condo or separate homes? Need to know the details of ownership. A condo with shared roofs and a unit down below the HOA could be responsible for the prevention of damage to the floor unit. However, the inside of the unit not so much.

How is the HOA legally able to enter this property? The HOA does NOT own it. Unless the HOA is repairing it's common property like walls/roofs. Everything else is the owner or future owner.

Someone best explained it as this... Your unit is like a box. If you flip that box upside down, everything that falls out is the owner's responsibility. That is where homeowner's insurance picks up.

Now you don't like to hear this but it's just not much can do. We had a unit we foreclosed on. It had a water leak. We were able to turn off the water but after than nothing we could do. We do not own the home and had no legal rights to enter. It stayed this way for a year till a new owner was able to purchase it. Them the breaks...

Former HOA President
PatJ1
(North Carolina)

Posts:101


08/21/2020 4:35 AM  
It would be very much worth your while to have an HOA attorney review your governing documents and write an opinion. Every state and set of documents are different.

In the past our HOA paid for all interior damages. We had our attorney review and found that we were not always responsible. The opinion has saved us thousands of dollars.

With as much money as you are talking, the cost of the opinion will well be worth it and would also help you on any future issues.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
CathyA3
(Ohio)

Posts:1235


08/21/2020 4:59 AM  
I agree with Pat that the experts should weigh in on this before the board makes any decisions. Every community is different due to governing docs, state laws, and insurance coverage.

One mistake many boards make is assuming that any damage which originates in the common elements (eg. the roof) is the responsibility of the association. This is not the case.

Based on my experience, the mold and other damage to the upstairs unit would be considered maintenance and not covered by the HOA's insurance. It would be an insurable event if the roof had been torn away in a storm and the interior mold and other damage resulted directly from that. This can happen in southern states where mold can grow almost overnight. In the Great Frozen North, mold is nearly always a maintenance issue.

Our insurance agent also said that negligence was not considered when paying out a claim. It was strictly "who is responsible for what" according to the governing docs and the details of the insurance policies.

(Disclaimers: Our governing docs state that owners are responsible for maintaining the interior of their units. My COA carries all-included insurance, which does cover interior repairs as described by Melissa **but only when there is an insurable event**. The event as described by the OP would not be an insurable event. If we were dealing with a similar situation in my community, the fact that the unit owner failed to maintain her interior due to age is unfortunate, but that failure does not transfer the responsibility to someone else.)

As with all of this stuff, your mileage may vary.
SheliaH
(Indiana)

Posts:3460


08/21/2020 5:08 AM  
Our master policy doesn't pay for any damage from the drywall in, regardless of what causes it. We're a townhouse community and would pay for the roof, but that's it. When I was on the Board, we reminded homeowners every year what the expectations were regarding homeowner's insurance, and urge everyone to get sewer and water damage coverage. We said that mostly because of the tree root sewer line disruption issue we had at the time (with repairs averaging $3K a pop), but this case should also remind people not to forget about the roof, leaky windows, water heaters and washing machines that may go pfft, etc.

You mentioned the resident was elderly and hadn't gone upstairs in years, probably due to mobility issues, and I'm wondering if there might have been some cognitive decline or dementia too, and so she might not have recognized the severity of what was happening. Do you know if she had family looking in on her? If so, it seems to me they should have gone upstairs at some point and looked around, especially if she mentioned the roof was leaking.

I would start with your documents - what do they say about association vs. homeowner responsibility?
I suspect the owner's estate will have to pay for some of this, but depending on the size of her estate, the board might brace itself for the possibility it'll have to pay. Have your attorney keep track of this, especially if this winds up in probate court (especially if the lady didn't have a will - and then you may find yourself in a really hot mess.)
GeorgeR8
(Arizona)

Posts:167


08/21/2020 7:19 AM  
Owner pays dry wall in for my association. Check with your attorney before you do or even say anything.
NathanL2
(California)

Posts:27


08/21/2020 7:34 AM  
Hi thanks for the answer, we are have shared walls, so there is one roof for all the units. Would that make a difference?
NathanL2
(California)

Posts:27


08/21/2020 7:35 AM  
Posted By PatJ1 on 08/21/2020 4:35 AM
It would be very much worth your while to have an HOA attorney review your governing documents and write an opinion. Every state and set of documents are different.

In the past our HOA paid for all interior damages. We had our attorney review and found that we were not always responsible. The opinion has saved us thousands of dollars.

With as much money as you are talking, the cost of the opinion will well be worth it and would also help you on any future issues.




Thank you. Yes our management guy said we can pay a few hundred dollars to have a consultation with an HOA attorney. It sounds like it might be worth it
NathanL2
(California)

Posts:27


08/21/2020 7:35 AM  
Posted By PatJ1 on 08/21/2020 4:35 AM
It would be very much worth your while to have an HOA attorney review your governing documents and write an opinion. Every state and set of documents are different.

In the past our HOA paid for all interior damages. We had our attorney review and found that we were not always responsible. The opinion has saved us thousands of dollars.

With as much money as you are talking, the cost of the opinion will well be worth it and would also help you on any future issues.




Thank you. Yes our management guy said we can pay a few hundred dollars to have a consultation with an HOA attorney. It sounds like it might be worth it
NathanL2
(California)

Posts:27


08/21/2020 7:38 AM  
Thanks for the reply. I took a look at our CCR and I found this language earlier. Not sure if it applies the same as yours but there is a degree of responsibility to for maintaining

"Article VII Power and Duties of Board of Governors:

"The Board, for the benefit of and as the agents of the owners, shall acquire, and shall pay for out of the maintenance fund hereinafter provided for, the following:.....

(c) Exterior maintenance (not including maintenance of glass in windows and doors of apartments), gardening, care....and full maintenance of the common area
....

(e) Maintenance and repair of any particular condominium of a type normally the sole responsibility of the owner of the particular condominium, if such maintenance or repair is reasonably necessary in the discretion of the Board to protect the interests of owners generally and if the owner of the particular condominium has failed or refused to perform such maintenance or repair; provided, however, at that the Board shall levy a special assessment against the particular condominium for repayment of the cost of such maintenance or repair."

Article IX Owners' Obligations to Repair:

"Except for these portions which the Board is required to maintain and repair hereunder, each owner shall, at his sole cost and expense, maintain and repair his condominium, keeping the same in good condition."
PatJ1
(North Carolina)

Posts:101


08/21/2020 7:39 AM  
You really need to consult with an HOA attorney to write an option based on your governing documents.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
NathanL2
(California)

Posts:27


08/21/2020 7:42 AM  
Posted By SheliaH on 08/21/2020 5:08 AM
Our master policy doesn't pay for any damage from the drywall in, regardless of what causes it. We're a townhouse community and would pay for the roof, but that's it. When I was on the Board, we reminded homeowners every year what the expectations were regarding homeowner's insurance, and urge everyone to get sewer and water damage coverage. We said that mostly because of the tree root sewer line disruption issue we had at the time (with repairs averaging $3K a pop), but this case should also remind people not to forget about the roof, leaky windows, water heaters and washing machines that may go pfft, etc.

You mentioned the resident was elderly and hadn't gone upstairs in years, probably due to mobility issues, and I'm wondering if there might have been some cognitive decline or dementia too, and so she might not have recognized the severity of what was happening. Do you know if she had family looking in on her? If so, it seems to me they should have gone upstairs at some point and looked around, especially if she mentioned the roof was leaking.

I would start with your documents - what do they say about association vs. homeowner responsibility?
I suspect the owner's estate will have to pay for some of this, but depending on the size of her estate, the board might brace itself for the possibility it'll have to pay. Have your attorney keep track of this, especially if this winds up in probate court (especially if the lady didn't have a will - and then you may find yourself in a really hot mess.)




Hi thanks for the response. I only know what i know from the management guy dealing with the deceased's grandson. They had said that he hadn't gone up there in a long time, not sure the exact wording but based on the extent of the damage and mold, it would've taken years to accumulate. The deceased had the grandson look in on them, but apparently they were unaware of the damage until they cleared out his things. They want to rent the place out and they have to fix it up beforehand.
NathanL2
(California)

Posts:27


08/21/2020 7:43 AM  
Posted By GeorgeR8 on 08/21/2020 7:19 AM
Owner pays dry wall in for my association. Check with your attorney before you do or even say anything.




Got it. sounds like good advice
SamE2
(New Jersey)

Posts:298


08/21/2020 8:32 AM  
You said the owner died. Was the unit sold or were there 2 owners in the unit? What I'm asking is was there a buyer involved. In my HOA the owner is responsible from the drywall in, so we would not pay for anything.
NathanL2
(California)

Posts:27


08/21/2020 8:39 AM  
Posted By SamE2 on 08/21/2020 8:32 AM
You said the owner died. Was the unit sold or were there 2 owners in the unit? What I'm asking is was there a buyer involved. In my HOA the owner is responsible from the drywall in, so we would not pay for anything.





Yes the owner died and I don't know the details but his grandson is the one we're dealing with now. No buyer involved and their intent is to rent it out.
MelissaP1
(Alabama)

Posts:9532


08/21/2020 9:32 AM  
Why would the HOA spend 10K on something they do not own? It's not like you are going to get the 10K back for fixing it up. The owner is the beneficiary of this work NOT the HOA.

Yes, the HOA is responsible for roofs if that is how it is written. Whatever is below the roofs or inside the drywall isn't. Your HOA does NOT own the unit and does not benefit.

Some may argue that an unoccupied mold filled unit doesn't do the HOA/condo any favors. However, there is also the facts that the HOA doesn't own nor control the insides of people's homes unless it effects the exterior.

Don't like the situation but also would never put the HOA in the responsible role of fixing up a unit either.

Former HOA President
CathyA3
(Ohio)

Posts:1235


08/21/2020 9:34 AM  
Posted By NathanL2 on 08/21/2020 8:39 AM
Posted By SamE2 on 08/21/2020 8:32 AM
You said the owner died. Was the unit sold or were there 2 owners in the unit? What I'm asking is was there a buyer involved. In my HOA the owner is responsible from the drywall in, so we would not pay for anything.





Yes the owner died and I don't know the details but his grandson is the one we're dealing with now. No buyer involved and their intent is to rent it out.



This is more complicated by the death of the (former) owner. I'll repeat others' advice for getting the association's attorney involved. The unit may be in probate, it may have been owned in trust, the grandson may be the heir or a trustee or who knows what. You don't want to get this wrong, and potential landlords can be in a hurry to get their property listed and may push for a premature resolution.

Once you've sorted that out, responsibility for repairs should be more straightforward and will be determined by what your CC&Rs define as the "unit", "common elements", the unit owner's responsibilities, and the association's responsibilities. The roof will be the association's, but what about any damage to walls or ceiling? Is the framing considered common elements (not unusual in attached homes)? Drywall is nearly always part of the unit. But this can vary by community, so you need to understand what your particular governing docs say - and they'll likely be nitpicky and detailed, with little gotcha phrases such as "unless otherwise specified elsewhere". So be sure you read the relevant sections in their entirety.
MarshallT
(New York)

Posts:101


08/21/2020 9:50 AM  
If possible, consult with a lawyer. There is a chance the HOA will have to pay for all of the repairs, but this situation is complicated. With such a high price tag, it is worth it to speak with a legal professional.
JohnC77
(Washington)

Posts:139


08/21/2020 10:14 AM  
Having gone through three years of these types of damages, here is what I can say. The HOA has the responsibility to maintain and repair the roofs. Unless your governing documents state otherwise, the owner is responsible for any damage to the interior. That is what insurance.

In addition, the owner has a responsibility to also report this is a timely manner. I understand the circumstances with the owner passing away, but it isn't the HOA's job to police.
JohnC46
(South Carolina)

Posts:9877


08/21/2020 10:14 AM  
Nathan

Yes do seek legal counsel. That said, typically in such a situation it will end up being a battle of insurance companies. The HOA's insurance company and the unit owners insurance company as to who pays for what. This assumes both have insurance.
NathanL2
(California)

Posts:27


08/21/2020 11:29 AM  
Posted By MelissaP1 on 08/21/2020 9:32 AM
Why would the HOA spend 10K on something they do not own? It's not like you are going to get the 10K back for fixing it up. The owner is the beneficiary of this work NOT the HOA.

Yes, the HOA is responsible for roofs if that is how it is written. Whatever is below the roofs or inside the drywall isn't. Your HOA does NOT own the unit and does not benefit.

Some may argue that an unoccupied mold filled unit doesn't do the HOA/condo any favors. However, there is also the facts that the HOA doesn't own nor control the insides of people's homes unless it effects the exterior.

Don't like the situation but also would never put the HOA in the responsible role of fixing up a unit either.



This is basically my common sense understanding of it, but our management person kind of felt in the cases he's seen that there is a good chance we'll have to pay it because it was the HOA's responsibility to upkeep the roof. I asked well how would we know there was an issue if he'd never brought it up? He said something like it's possible the HOA Board is supposed to do like a regular check. I think he's just taking his best guess and acknowledges he's not sure.
NathanL2
(California)

Posts:27


08/21/2020 11:32 AM  
Thanks for the advice, Cathy! I read through the CCR's already and it is in legal-ese so I can only guess what it means. We will need an expert to tell us how to interpret it.
NathanL2
(California)

Posts:27


08/21/2020 11:34 AM  
Posted By JohnC77 on 08/21/2020 10:14 AM
Having gone through three years of these types of damages, here is what I can say. The HOA has the responsibility to maintain and repair the roofs. Unless your governing documents state otherwise, the owner is responsible for any damage to the interior. That is what insurance.

In addition, the owner has a responsibility to also report this is a timely manner. I understand the circumstances with the owner passing away, but it isn't the HOA's job to police.



I would think this would all be true. Our management guy gives me the impression that we will likely have to pay it cuz it has to do with damage from the roof. I don't think he has combed through our CCR but i think we have a generic one. He did say that the owner's insurance wouldn't touch it because it has to do with the roof. I don't know if that's his interpretation or if the owner told him those words.
NathanL2
(California)

Posts:27


08/21/2020 11:35 AM  
Posted By JohnC46 on 08/21/2020 10:14 AM
Nathan

Yes do seek legal counsel. That said, typically in such a situation it will end up being a battle of insurance companies. The HOA's insurance company and the unit owners insurance company as to who pays for what. This assumes both have insurance.



Thanks for the advice!
KerryL1
(California)

Posts:7502


08/21/2020 11:49 AM  
Your "management guy," Nathan is NOT qualified to interpret your gloving documents and stat statutes. Your Board would be foolish if they do not get a written opinion from legal council, preferably an HOA attorney.
CathyA3
(Ohio)

Posts:1235


08/21/2020 12:05 PM  
Posted By KerryL1 on 08/21/2020 11:49 AM
Your "management guy," Nathan is NOT qualified to interpret your gloving documents and stat statutes. Your Board would be foolish if they do not get a written opinion from legal council, preferably an HOA attorney.



And the "management guy" is likely to be wrong. As I'd noted earlier, many boards make the mistake of believing that any damage originating in the common elements is the association's responsibility. Not true. The details of individual situations will determine who has to pay for what.
NathanL2
(California)

Posts:27


08/21/2020 12:22 PM  
Posted By CathyA3 on 08/21/2020 12:05 PM
Posted By KerryL1 on 08/21/2020 11:49 AM
Your "management guy," Nathan is NOT qualified to interpret your gloving documents and stat statutes. Your Board would be foolish if they do not get a written opinion from legal council, preferably an HOA attorney.



And the "management guy" is likely to be wrong. As I'd noted earlier, many boards make the mistake of believing that any damage originating in the common elements is the association's responsibility. Not true. The details of individual situations will determine who has to pay for what.



I see. Thanks, i'll let the other Board members know this is what we need to do first.
JohnC46
(South Carolina)

Posts:9877


08/21/2020 1:55 PM  
Posted By KerryL1 on 08/21/2020 11:49 AM
Your "management guy," Nathan is NOT qualified to interpret your gloving documents and stat statutes. Your Board would be foolish if they do not get a written opinion from legal council, preferably an HOA attorney.



I agree.
TimB4
(Virginia)

Posts:16955


08/21/2020 2:06 PM  
Turn it over to the insurance companies (yours and theirs) and let the two of them figure it out.


JohnC46
(South Carolina)

Posts:9877


08/21/2020 4:19 PM  
Posted By TimB4 on 08/21/2020 2:06 PM
Turn it over to the insurance companies (yours and theirs) and let the two of them figure it out.





Good advice.

NathanL2
(California)

Posts:27


09/09/2020 8:33 PM  
I want to give an update on this and to thank everyone for the advice. The Board is finally going to have a consultation with an HOA lawyer this Monday. I have some questions that I'm ready to ask and if anyone's willing maybe you can let me know if I'm missing anything. I want the lawyer to look at our CCR before hand as well as the work order for the Unit's repairs. I am checking with our management company concerning our master insurance policy. I don't know that they were consulted so i'd like to make sure.

The questions i have in mind are

1) Is the HOA generally liable for water damage from a leaky roof if both the individual owner's insurance and the master insurance will not cover it?

2) Is the HOA liable in the above situation if the leak was unreported for years and grew to massive amounts of damage?

3) Are there specifics as to what we are liable for? It sounds like we'd be paying for drywall damage to every room upstairs, but also rotted timbers, light fixtures, a new fiberglass tub, acoustic ceiling removal (literally paying for them to scrape the popcorn ceiling), vanity sinks, etc. There has to be a limit here, right?

4) I believe previously we took a vote to pay ~$9K in repairs for them months ago. If found that the HOA is not responsible for the damages, are we still obligated to pay the $9K?


Please let me know if you can think of any other questions to ask. Without the advice of this forum, we might have just agreed to pay for everything on the advice of our management company. I'm really hoping common sense prevails here and it turns out we are not (at least not wholly) responsible for all of this damage. Thank you again!
LetA
(Nevada)

Posts:1019


09/09/2020 8:45 PM  
Get your HOA lawyer on phone for a consult. Are you able to file a claim with the deceased owners insurance company? perhaps file a claim against the estate in probate court?
NathanL2
(California)

Posts:27


09/09/2020 8:54 PM  
Posted By LetA on 09/09/2020 8:45 PM
Get your HOA lawyer on phone for a consult. Are you able to file a claim with the deceased owners insurance company? perhaps file a claim against the estate in probate court?



Yes we'll be having a group zoom meeting on Monday. I have no idea about filing a claim with the deceased's insurance. I can ask the lawyer. I'd only read and heard that individual homeowner's insurance likely wouldn't cover something like this. But I can ask
JohnC77
(Washington)

Posts:139


09/09/2020 8:55 PM  
You don't need a lawyer, you need the opinion of the insurance . They wrote the master policy based on your governing documents through their underwriters.
JohnC77
(Washington)

Posts:139


09/09/2020 8:56 PM  
You don't need a lawyer, you need the opinion of the insurance company that insures your complex. They wrote the master policy based on your governing documents through their underwriters.
NathanL2
(California)

Posts:27


09/09/2020 9:11 PM  
Posted By JohnC77 on 09/09/2020 8:56 PM
You don't need a lawyer, you need the opinion of the insurance company that insures your complex. They wrote the master policy based on your governing documents through their underwriters.



So I should talk to the master insurance policy, explain the situation and ask who is liable here and who's (if anyone's) insurance will cover this? Ok, my assumption was both insurances would say this damage isn't covered, but i haven't talked to them, we'd all left that mostly to the management company.
JohnC77
(Washington)

Posts:139


09/09/2020 10:15 PM  
The master insurer will cover the expense if the CCRs require them to. Of course, the more they have to cover the more costly the policy. When a master insurer writes the policy, they will always ask for a copy of the association's governing documents.
NathanL2
(California)

Posts:27


09/09/2020 10:38 PM  
Posted By JohnC77 on 09/09/2020 10:15 PM
The master insurer will cover the expense if the CCRs require them to. Of course, the more they have to cover the more costly the policy. When a master insurer writes the policy, they will always ask for a copy of the association's governing documents.



Ok, so if the master insurer responds to us that they reject a claim to pay for water damage to this unit as the master policy doesn't cover it, whether it's negligence or they just don't cover internal water damage from a leaky roof, then what? The unit's owner would still want us to pay for the repairs. We still need our lawyer, don't we?
JohnC77
(Washington)

Posts:139


09/09/2020 11:05 PM  
I am dealing with a very similar situation. The HOA is responsible for the roofs, but not to any damage rain may have caused. The owner is responsible for the interior of their unit and may need to have their insurer cover. Again, their policy may not cover, in which case they are out of pocket. Get better coverage. Again, it goes back to what the HOA does and does not cover.
NathanL2
(California)

Posts:27


09/09/2020 11:16 PM  
Really? HOA being responsible for the roof makes sense to me. HOA being responsible for water damage because the roof has a leak makes sense to me as well as long as it is within reason and reported in a timely manner, so it's a bit surprising to hear someone say it's definitively not the HOA's duty. Well, i'm curious to talk to that lawyer and if i have time tomorrow i guess i'll see if I can find our HOA master policy and give them a call.
CathyA3
(Ohio)

Posts:1235


09/10/2020 5:43 AM  
What seems "reasonable" and "fair" may not be what's required according to your governing docs.

In a similar situation that occurs in my community, the association would pay to repair the roof, and the homeowner would be responsible for repairs to her unit. (This is assuming that it was a slow leak and not the result of an insurable event such as a storm.) A slow leak that was ignored by the homeowner - for whatever reason, doesn't matter why - is considered maintenance, and the homeowner is responsible for maintaining the unit. This is according to our Declaration - which is why a number of us have said that you need to read your governing docs closely to see what they say.

If the roof damage came about as the result of a storm (ie. sudden, unpredictable, unpreventable), then that would be an insurable event and your insurer would determine what is covered by the HOA and what is not.

So "reasonable and fair" doesn't enter into it. If you ignore what your governing docs say, then you're putting the welfare of a single owner ahead of your obligation to act in the best interest of the association as a whole. This would be a breach of your fiduciary duty as a board member.
NathanL2
(California)

Posts:27


09/10/2020 8:36 AM  
Posted By CathyA3 on 09/10/2020 5:43 AM
What seems "reasonable" and "fair" may not be what's required according to your governing docs.

In a similar situation that occurs in my community, the association would pay to repair the roof, and the homeowner would be responsible for repairs to her unit. (This is assuming that it was a slow leak and not the result of an insurable event such as a storm.) A slow leak that was ignored by the homeowner - for whatever reason, doesn't matter why - is considered maintenance, and the homeowner is responsible for maintaining the unit. This is according to our Declaration - which is why a number of us have said that you need to read your governing docs closely to see what they say.

If the roof damage came about as the result of a storm (ie. sudden, unpredictable, unpreventable), then that would be an insurable event and your insurer would determine what is covered by the HOA and what is not.

So "reasonable and fair" doesn't enter into it. If you ignore what your governing docs say, then you're putting the welfare of a single owner ahead of your obligation to act in the best interest of the association as a whole. This would be a breach of your fiduciary duty as a board member.



Thanks for the advice. I have looked through our CCR and from what i can tell there just isn't a lot in there and it doesn't really tell me exactly who should pay for what. It's surprisingly short and it doesn't specify like "a unit includes drywall" or "it doesn't include drywall."

There are some parts that to my untrained legal mind seem like they could be relevant, but i don't know about the wording and what it means for this situation. For example it says clearly that board maintenance funds will be used to maintain the exterior and to make "structural repairs, except where the damage or difficulty results from fault or neglect of a particular owner or unit." Another part says the board can use maintenance funds to repair or do maintenance on any particular owner's condo but that the owner will pay a special assessment. There's a very short part about each owner keeping their condo in good condition for everything other than the Board's responsibility. But in this particular case, what does that mean? I feel like only a lawyer can really tell us in California what usually happens here.
NathanL2
(California)

Posts:27


09/10/2020 8:45 AM  
There might be another document other than our CCR. I recall reading something about pets being under 35 lbs but i can't find that in our CCR. Maybe there's another document I need to find.
JohnC77
(Washington)

Posts:139


09/10/2020 10:00 AM  
Posted By NathanL2 on 09/10/2020 8:45 AM
There might be another document other than our CCR. I recall reading something about pets being under 35 lbs but i can't find that in our CCR. Maybe there's another document I need to find.



That other documents would most likely be called your Rules and Regulations. What you are looking for has to be in the CCRs, not the R and R.
If it was intended to be covered, it would be spelled out in that documents. I have seen CCRs written where the HOA covers everything, and I do mean everything, even putting too much toilet paper in one's toilet subject to the association's $25,000 deductible.
NathanL2
(California)

Posts:27


09/10/2020 10:50 AM  
I see so the CCR is really the document that supersedes everything. This is definitely an old document. I see something here about no one under 14 being a resident here which i recall asking about a few years ago and someone said that's unenforceable and must have been written decades ago before laws were more clear that that can't happen. There's something here about HOA being in charge of changing air filters. Weird stuff
CathyA3
(Ohio)

Posts:1235


09/10/2020 10:53 AM  
Posted By NathanL2 on 09/10/2020 8:36 AM
Posted By CathyA3 on 09/10/2020 5:43 AM
What seems "reasonable" and "fair" may not be what's required according to your governing docs.

In a similar situation that occurs in my community, the association would pay to repair the roof, and the homeowner would be responsible for repairs to her unit. (This is assuming that it was a slow leak and not the result of an insurable event such as a storm.) A slow leak that was ignored by the homeowner - for whatever reason, doesn't matter why - is considered maintenance, and the homeowner is responsible for maintaining the unit. This is according to our Declaration - which is why a number of us have said that you need to read your governing docs closely to see what they say.

If the roof damage came about as the result of a storm (ie. sudden, unpredictable, unpreventable), then that would be an insurable event and your insurer would determine what is covered by the HOA and what is not.

So "reasonable and fair" doesn't enter into it. If you ignore what your governing docs say, then you're putting the welfare of a single owner ahead of your obligation to act in the best interest of the association as a whole. This would be a breach of your fiduciary duty as a board member.



Thanks for the advice. I have looked through our CCR and from what i can tell there just isn't a lot in there and it doesn't really tell me exactly who should pay for what. It's surprisingly short and it doesn't specify like "a unit includes drywall" or "it doesn't include drywall."

There are some parts that to my untrained legal mind seem like they could be relevant, but i don't know about the wording and what it means for this situation. For example it says clearly that board maintenance funds will be used to maintain the exterior and to make "structural repairs, except where the damage or difficulty results from fault or neglect of a particular owner or unit." Another part says the board can use maintenance funds to repair or do maintenance on any particular owner's condo but that the owner will pay a special assessment. There's a very short part about each owner keeping their condo in good condition for everything other than the Board's responsibility. But in this particular case, what does that mean? I feel like only a lawyer can really tell us in California what usually happens here.




OK, that makes it harder.

Our Declaration has an article that contains definitions, including ones for "common area", "limited common area", and "unit". The section on unit lists all components of a unit, including drywall, ceilings, flooring, exterior doors, windows, and utility lines inside common walls that only serve that unit.

There is also another article that describes who is responsible for what, and includes a section listing all of a unit owner's responsibilities, including "to maintain, repair, and replace all components of the unit." The article also states that the association is responsible for "maintaining, repairing, and replacing" all portions of the "common areas" as defined by the previous article.

If your Declaration/CC&Rs aren't that detailed, then another place you may be able to tease this out is by seeing exactly what your HOA is insuring and exactly what the unit owner was insuring (on the theory that people only insure the items that they are responsible for). BUT... you have to know what kind of insurance your HOA carries. If it's "all included", then the HOA may cover repairs to an individual unit but **only if the damage was due to an insurable event** such as a storm. If you're carrying bare-bones insurance, where the HOA only insures common areas, then your HOA's policy should give you some reasonable guidance.

Having your lawyer give an opinion is best, though, since the new owner may want to fight this in court. And with the death of the previous owner, and who knows what legal limbo the unit is in, this situation is murkier than it would be otherwise. Top it all off with vague CC&Rs, and you have the sort of situation that needs professional help.


NathanL2
(California)

Posts:27


09/10/2020 12:41 PM  
Thank you for the reply. I spent some time in between my zoom meetings tracking down what our insurance says about this stuff as it wasn't clear to me because I'm relatively new. So our master policy insurance had already rejected the claim for this a year ago around the time i came on board (I must've both not understood much at the time and our management company didn't really explain a lot). They sent out a claims adjuster and said the damage was due to a roof leak and the roof wasn't in good condition. I'm not sure if the Unit's current owner had put in a claim with their insurance yet. The roof is definitely old and was likely replaced 15 years ago. I have no idea to what degree it was maintained prior to me moving in two years ago and joining the board about a year ago. Since I have been on, every time someone says they have a leak, the board sends a roofer out to repair it ASAP.

It now just sounds like it's an HOA lawyer issue. If this unit had documented complaints about a leaky roof causing damage and it was ignored, I can totally understand how the Board would be responsible. However, to my knowledge, he never complained about it. Now were we supposed to do regular roof inspections for the last 15 years? I'm not sure and I don't know to what degree that might've happened. But this will be an issue we'll raise with the HOA lawyer: did the unit owner have a reasonable or standard duty to report damages so we could fix the leaks before the cost exploded?

If anyone has any other thoughts or questions to bring up with the lawyer, i'd appreciate it!
NathanL2
(California)

Posts:27


09/10/2020 12:43 PM  
Oh i was also thinking that we need to add in some language to the CCR that makes it clear that the owners have a responsibility to inform us of an issue that requires maintenance and if they do not do so in a timely manner, they may have a special assessment levied against them.
CathyA3
(Ohio)

Posts:1235


09/10/2020 1:20 PM  
Posted By NathanL2 on 09/10/2020 12:43 PM
Oh i was also thinking that we need to add in some language to the CCR that makes it clear that the owners have a responsibility to inform us of an issue that requires maintenance and if they do not do so in a timely manner, they may have a special assessment levied against them.





For future reference, amending your CC&Rs is a legal process that requires approval of the homeowners (usually a super-majority such as 67% or 75%, but it varies by state and community).

It does sound like yours are vague about things that should be more explicit (eg, the items I mentioned earlier, and our Declaration includes a statement similar to what you just wrote in the Unit Owner Responsibilities section). But amending can be a major project, as well as expensive and time consuming, so it's something to discuss with the rest of the board later.
NathanL2
(California)

Posts:27


09/14/2020 10:33 PM  
Hello I just wanted to update this thread after meeting with our HOA lawyer today. People here were correct in believing the Board likely isn't liable for things outside of the drywall. Our lawyer said it is like a box and the Board is responsible for maintaining that box which would include the drywall. However, everything inside of that is the owner's responsibility including tubs and counters and cabinets.

He said it could be possible that the Board could be liable for damage to the other parts inside the box if it could be proven the Board was negligent and ignored requests by the owner to fix the roof. That would have been way before my time and we have no record of it so the lawyer said we can't operate on what we don't know. I asked if the Board had some responsibility to do regular roof inspections and he said there is sort of a 3 yr plan that should be kept up regularly but that it doesn't require someone actually finding every hole that could exist in a roof

There was discussion about whether the owner would sue because this process has taken so long (approaching a year) and they have not been able to rent out the place. Our lawyer said they could have a point if we haven't been trying to fix their problems. But every request we've followed up with, it just kept ballooning into a bigger and more expensive project that eventually involved replacing the entire roof. He said that while the Board is working on repairs, it is not the Board's responsibility to accommodate the owner and pay for their lodging or reimburse their lost rent.

The lawyer suggested if we really want to avoid litigation we could give them more money but even if they wanted to sue, insurance would kick in if we were found negligent which might raise our rates but that's it. I'm leaning towards saying our original offer of ~$10K for drywall repair is our best and final offer. If they want to litigate it I actually think we have a pretty good case that we shouldn't even pay that much as if the deceased owner had informed the Board of the problem years ago, it wouldn't even be close to $10K as the damage would have been far less extensive.

Thanks everyone, and i hope this situation informs people who deal with something similar.
MelissaP1
(Alabama)

Posts:9532


09/15/2020 4:38 AM  
Good and accurate advice by the lawyer. However, I can NOT stress enough of STOP living in the fear of being sued to make decisions. That is the WORST thing you can do. So what if they sue? Your HOA has insurance, it has acted correctly, and has a lawyer to defend it. So why live in the fear of a lawsuit and spend more money trying to avoid one? Your losing money on an ounce of cure.

My reaction to a potential lawsuit? Let me see the paperwork and we will see you in court. Unless there is something concrete to settle on, it's court time.

Former HOA President
JohnC46
(South Carolina)

Posts:9877


09/15/2020 10:01 AM  
Posted By MelissaP1 on 09/15/2020 4:38 AM
Good and accurate advice by the lawyer. However, I can NOT stress enough of STOP living in the fear of being sued to make decisions. That is the WORST thing you can do. So what if they sue? Your HOA has insurance, it has acted correctly, and has a lawyer to defend it. So why live in the fear of a lawsuit and spend more money trying to avoid one? Your losing money on an ounce of cure.

My reaction to a potential lawsuit? Let me see the paperwork and we will see you in court. Unless there is something concrete to settle on, it's court time.



I agree.
TimB4
(Virginia)

Posts:16955


09/16/2020 5:20 AM  
Nathan,

Thank you for the update.

Updates to issues don't always happen.

When updates happen, everyone gets to learn.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Is the HOA responsible for owner negligence?



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement