Tag: HOA Dispute Attorney Los Angeles; Los Angeles HOA Dispute Attorney; HOA Dispute Lawyer

Except for an exceptional circumstance, our HOA Dispute Attorneys do not name individual board of director members in lawsuits against the HOA.  Under the Lamden “Judicial Deference” Rule, board of director members, individually sued, will be offered protection for their business decisions related to maintenance and repair obligations of an association.  See Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal. 4th 249.  Judicial deference will be afforded to board members in their decision making process unless it can be shown that the decision was arbitrary or discriminatory in nature.  While the HOA itself may be liable for negligent or bad decisions leading to injury, board members likely will be insulated from individual liability.

With that said, an HOA board member can still be held to a standard of care in serving as a director.  California Corporations Code Section 7231.5(a) states the requirements to be met by a board member when allegations arise that the board member failed to discharge their duties as a director.  So long as the board member “(1) performs the duties of office in good faith; (2) performs the duties of office in a manner believed to be in the best interests of the corporation; and (3) performs the duties of office “with such care, including reasonable inquiry, as an ordinary prudent person in a like position would use under similar circumstances” then a board member will be held to have discharged their duties.

Therefore, when in a dispute with your HOA, the conduct of the board of directors, whether in their investigation of a particular issue or problem, or in discharging their duties, will be directly relevant to the propriety of the HOA’s decision at the center of the dispute.

If you have an HOA dispute or would like to speak to an HOA Dispute Attorney, contact us today for a free consultation and case evaluation.

Many of the HOA disputes we handle for our homeowner clients involve failing pipes and plumbing fixtures which result in damage to the homeowner’s unit.  Plumbing failures are an unfortunate part of owning a unit subject to an association.  Problems arise when the HOA Board decides that it will not cover damage to property resulting from water intrusion caused by a plumbing or pipe failure.

Typically, the CC&Rs will define “common area” and exclusive use common area” and an effective CC&Rs will be clear as to what plumbing fixtures will be the responsibility of the HOA.  Disputes arise when an HOA Board takes the position that a particular plumbing fixture constitutes “exclusive use common area” so as to pass the responsibility and expense to the homeowner.

At least one Court of Appeal case in California has addressed this issue and somewhat cleared up the question.  In Dover Village Assn. v. Jennison, (2010) 191 Cal. App. 4th 123, a failed plumbing fixture underneath a unit failed causing sewage to back up into the unit.  The HOA sought the repair cost from the homeowner citing to the fact that the particular plumbing fixture that failed was exclusive use common area because that section of piping somehow only served that unit.  After the trial judge ruled in favor of the homeowner, the HOA appealed.

On appeal, the Dover Village Court agreed with the trial court, affirmed the ruling and held that “interconnected sewer pipes cannot really be said to be the “fixtures” of any particular unit. A sewer system is a series of interconnected pipes which ultimately feed into one common line. Differentiating parts of that interconnected system is unreasonable. The portion of piping coming from one unit is no more affixed to that unit than it is to the sewer system and other pipes or piping within that system.” Id. at 129.

Thus, the argument that a pipe is somehow exclusively used by a particular unit will fail as a matter of law where that pipe is part of the piping system to be maintained by the HOA.  The Dover Village Court also rejected the HOA Board’s argument that it was somehow entitled to deference under the law to decide whether the owner is responsible or not.  That argument was rejected and the Court posited that the Davis-Stirling Act does not make the Board the ultimate judge of legal issues affecting the development.

If you are a homeowner subject to an HOA and have been financially damaged by your HOA or you find yourself in a dispute with your HOA, contact one of our HOA dispute attorneys today for a free consultation and case evaluation.

Many HOA disputes originate from a board’s decision and how a decision may impact a particular homeowner.  The CC&Rs authorize Boards to make decisions that will benefit the association.  While an HOA cannot enforce a rule that is arbitrary or serves no benefit to the HOA, California Courts give a wide berth to an HOA Board’s authority to make a business decision and will often not disturb the decision as long as it benefits the HOA and is not arbitrary, discriminatory or otherwise illegal.

Items such as external unit décor, paint color, parking, architectural renovations and budgetary decisions (to name a few) will be within the Board’s sound discretion.  Homeowners who are on the adverse end of a particular Board decision, have every right and even a duty to scrutinize the decision, but homeowners should be mindful of the fact that Courts will allow Boards to make decisions whether they agree with the decision or not and without concern about how the decision affects the particular homeowner challenging the same.

This is not to say that a Board is free to make any decision it wants.  The Supreme Court in California articulated a formulation that courts can apply in deciding whether a particular Board decision is lawful and within its sound discretion.  The Supreme Court in Lamden v. La Jolla Shores Clubdominium Homeowners Assn., (1999) 21 Cal. 4th 249 held as follows:

“The formulation we have articulated affords homeowners, community associations, courts and advocates a clear standard for judicial review of discretionary economic decisions by community association boards, mandating a degree of deference to the latter’s business judgments sufficient to discourage meritless litigation, yet at the same time without either eviscerating the long-established duty to guard against unreasonable risks to residents’ personal safety owed by associations that “function as a landlord in maintaining the common areas”…or modifying the enforceability of a common interest development’s CC & R’s.

Common sense suggests that judicial deference in such cases as this is appropriate, in view of the relative competence, over that of courts, possessed by owners and directors of common interest developments to make the detailed and peculiar economic decisions necessary in the maintenance of those developments. A deferential standard will, by minimizing the likelihood of unproductive litigation over their governing associations’ discretionary economic decisions, foster stability, certainty and predictability in the governance and management of common interest developments. Beneficial corollaries include enhancement of the incentives for essential voluntary owner participation in common interest development governance and conservation of scarce judicial resources. Id at 251-52.”

If you have a question regarding your HOA Board’s decision which impacts you or your property, contact one of our HOA Dispute Attorneys today for a free consultation and case evaluation.

Often times, deferred maintenance or an HOA’s failure to exercise reasonable care in maintaining common areas cause damage to a homeowner’s individual unit.  When the HOA refuses to make repairs, a homeowner can bring a civil action to seek the cost of repair.  Typically, negligence claims are appropriate in such circumstances.

Under California law, an HOA is charged with the duty to exercise due care in the maintenance of common areas and those areas under its control.  See Frances T. v. Village Green Owners Assn., (1986) 42 Cal. 3d 490, 499.  The Supreme Court of California held in Village Green that “a condominium association may properly be held to a landlord’s standard of care as to the common areas under its control.” Id. at 500.  Thus, a homeowner could sue their HOA for its negligent failure to maintain the common area resulting in damage to the homeowners individual’s unit.

In White v. Cox, (1971) 17 Cal.App.3d 824, the Court held that a condominium owner could sue the unincorporated association for negligently maintaining a sprinkler in a common area of the complex. In so holding, the court recognized that the plaintiff, a member of the unincorporated association, had no “effective control over the operation of the common areas … for in fact he had no more control over operations than he would have had as a stockholder in a corporation which owned and operated the project.” Id. at 830.  Since the condominium association was a management body over which the individual owner had no effective control, the court held that the association could be sued for negligence by an individual member.

If you are a homeowner subject to an HOA and your property has been damaged as a result of some common area failures, contact one of our HOA dispute attorneys today for a free consultation and case evaluation.

Many HOA disputes arise from an HOA’s refusal to act or otherwise comply with its responsibilities under its CC&Rs. Sometimes disputes arise from the most trivial action or inaction taken by the HOA Board. Homeowners are then faced with the proposition of litigating and incurring attorney fees in order to compel the HOA to comply with its own rules and regulations. Litigation should be avoided where possible but sometimes a homeowner is left with little choice.

We’ve recently encountered HOA Boards who have effectively waited until a lawsuit was filed by a homeowner, to then make the repair or undo a prior wrongful/unlawful act. It is in these circumstances wherein we’ve then seen HOA Boards argue that the homeowner is not entitled to attorney fees as the prevailing party because the harm was addressed prior to trial. California Courts have taken this issue under consideration and seem to agree with the view that the homeowner who brought the lawsuit is nevertheless entitled to his/her attorney fees.

A plaintiff may prevail for purposes of statute providing attorney fees if the lawsuit was the catalyst motivating the defendant to modify its behavior or the plaintiff achieved the primary relief sought. See Molski v. Arciero Wine Group, (2008) 164 Cal. App. 4th 786, 790 (“A plaintiff may ‘prevail’ for purposes of [Civil Code] section 55 if the lawsuit was the catalyst motivating the defendant to modify its behavior or the plaintiff achieved the primary relief sought.”); see also Donald v. Café Royale, Inc., (1990) 218 Cal. App. 3d 168, 185 (Restaurant was not a “prevailing party” and was not entitled to attorney fees when trial court denied handicapped person’s request for injunctive relief for noncompliance with handicapped access standards since restaurant was indisputably in violation of handicap access requirements and injunctive relief was denied for express reason that restaurant was no longer in business, not because access violations had not been demonstrated.); see also California Common Cause v. Duffy, (1987) 200 Cal. App. 3d 730, 741 (“A plaintiff will be considered a prevailing party when the lawsuit ‘was a catalyst motivating defendants to provide the primary relief sought’ or succeeded in ‘activating defendants to modify their behavior.’”) (Internal citations omitted.)
“A plaintiff should not be denied attorney’s fees because resolution in the plaintiff’s favor was reached by settlement, through the defendant’s voluntary cessation of the unlawful practice or because the lawsuit was resolved on a preliminary issue obviating the adjudication of other issues.” Id. at 742.

Thus, if the homeowner’s lawsuit was the catalyst for modifying the HOA Board’s behavior, that homeowner would be deemed the prevailing party for purposes of an attorney fees award. If you are a homeowner and seek advice regarding your HOA Board, contact one of our HOA Dispute Attorneys in Los Angeles for a free consultation and case evaluation.

We’ve recently had a string of hardwood floor complaints and are actively prosecuting CC&R violations stemming from illegal/improper hardwood floors for several homeowners in the Los Angeles area. Many HOAs have specific rules regarding hardwood floor installations in order to prevent circumstances causing a nuisance to homeowners in units below hardwood flooring. Unfortunately, sometimes the rules themselves are the problem. Often HOAs set minimum standards for hardwood flooring materials such as IIC ratings (Impact Insulation Class). However, an IIC rating for materials used don’t always translate to better sound attenuation because there are usually significant differences between the rating flooring materials achieve in the laboratory, which is controlled vs. in the field where floor/ceiling assemblies can vary from building to building and unit to unit.

Thus, if you are a homeowner contemplating installing hardwood floors in your condo, make sure you are first in compliance with the rules and second, maximizing the padding and sound insulation materials with your install so as to not subject yourself to a nuisance complaint or worse, being named as a defendant in a CC&R violation lawsuit. If you are a homeowner who is experiencing disturbances and nuisances stemming from hardwood floors from the unit above, contact one of our HOA Dispute Attorneys in Los Angeles for a free consultation and case evaluation.

Under California law, CC&Rs, and the restrictions upon the use of property, will be upheld as Equitable Servitudes. See California Supreme Court Case of Citizens for Covenant Compliance v. Anderson, (1995) 12 Cal. 4th 345. The rule that Citizens established, which the Citizens Court held applies equally to both land covenants and equitable servitudes is stated as follows:

“If a declaration establishing a common plan for the ownership of property in a subdivision and containing restrictions upon the use of the property as part of the common plan, is recorded before the execution of the contract of sale, describes the property it is to govern, and states that it is to bind all purchasers and their successors, subsequent purchasers who have constructive notice of the recorded declaration are deemed to intend and agree to be bound by, and to accept the benefits of, the common plan; the restrictions, therefore, are not unenforceable merely because they are not additionally cited in a deed or other document at the time of the sale.” Id. at 349.

The reasoning behind the Citizens Court ruling was stated by the California Supreme Court as follows:

“No longer is there any reason to believe that the average American buying into a residential development would ‘protest vigorously against being compelled to perform promises he has never made. Since financial viability of the community depends on continued covenant compliance by all, the average buyer is more likely to protest if others in the development are permitted to escape performance of the covenants made by their predecessors…Having a single set of recorded restrictions that apply to the entire subdivision would also no doubt fulfill the intent, expectations, and wishes of the parties and community as a whole.” Id. at 364.

If you are a homeowner subject to a CC&Rs and have enforcement issues, contact one of our Los Angeles HOA Dispute Attorneys today for a free consultation and case evaluation.

HOAs are responsible for the maintenance of Common Areas. An HOA’s failure to maintain a Common Area component, (such as sanitary sewers, roof, siding, plumbing, etc…) often times causes damage to a homeowner’s separate interest Unit. Sometimes, CC&Rs are silent regarding repairs to a homeowner’s unit caused by Common Area failures. However, California Courts have applied the Doctrine of Equitable Servitude in compensating a homeowner for damages sustained as a result of an HOA’s failure to maintain Common Areas. The California Court of Appeal for the Fourth District in Affan v. Portofino Cove Homeowners Association, (2010) 189 Cal. App. 4th 930 held that the HOA was liable for breaching an equitable servitude to indemnify plaintiff homeowners for their casualty loss and awarded plaintiffs their remediation and restoration costs as damages when the Common Area sewers backed up and flooded plaintiff’s separate unit.

If you are a homeowner subject to CC&Rs and have an issue with your HOA, contact one of our HOA Dispute Attorneys in Los Angeles for a free consultation and case evaluation.

Our Los Angeles Real Estate Attorneys were recently asked to analyze whether the 5 year statute of limitations on land covenant enforcement actions was applicable to recently discovered violations. The statute reads as follows:

The period prescribed in this subdivision runs from the time the person seeking to enforce the restriction discovered or, through the exercise of reasonable diligence, should have discovered the violation. A failure to commence an action for violation of a restriction within the period prescribed in this subdivision does not waive the right to commence an action for any other violation of the restriction and does not, in itself, create an implication that the restriction is abandoned, obsolete, or otherwise unenforceable.

The statute is clear that a failure to commence an action for one violation, will not bar an action for another subsequent violation within the 5 year statute. If you have questions regarding a real estate matter, contact one of our Los Angeles Real Estate Attorneys for a free consultation and case evaluation.

Homeowners seeking to bring an enforcement action against their HOA or seeking to make a claim for damages against their HOA, must bring their civil action while they are homeowners. A 2006 California Court of Appeal case essentially held that a homeowner’s claim is extinguished upon sale. Thus, if you have a claim against your HOA but prior to filing your claim, sell your property, your claim would be extinguished by operation of law since you would no longer have standing to bring suit.

In Farber v. Bay View Terrace Homeowners Ass’n, (2006) 141 Cal. App. 4th 1007, a homeowner who sold his unit was sued by the buyer for nondisclosure related damages relating to common area repairs that the buyer claims the homeowner who sold, failed to disclose during escrow. Homeowner cross-claimed against the HOA as the repairs were common area repairs, claiming the HOA was responsible for the repairs. The trial court sustained the HOA’s demurrer to the cross-complaint on the ground that the homeowner, upon closing the sale, no longer had standing to bring an enforcement action against the HOA. The Court of Appeal agreed with the trial court and affirmed the ruling. The Farber Court held that “One who no longer owns land in a development subject to reciprocal restrictions cannot enforce them, absent showing the original covenanting parties intended to allow enforcement by one who is not a landowner.” Id at 1011.

Thus, a homeowner who is contemplating bringing an enforcement action against the HOA pursuant to Cal. Civ. Code § 5975, must do so prior to selling or conveying his/her interest in the property that is subject to the CC&Rs.

If you have an HOA dispute, contact one of our HOA Dispute Attorneys today for a free consultation and case evaluation.