HOA Counter Lawsuit

Would like some advice

I filed a small claims case against my HOA alleging 5 issues. Issue 1-3 were based on the HOA not completing a signed agreement to perform processes that were based on a mediated settlement of a small claims case I brought against the HOA. Issues 4-5 were issues that arose after the initial small claims case was mediatated.

For issue 1 this was the agreement: HOA will repair cracks and paint Unit "Number removed" exterior walls at its cost; condition either Association or "Name of unit holder removed" chosen contractor states in writing work is required or necessary. If repairs to be conducted will be done in 60 days using either contractor."

The HOA performed work within 60 days but only did part of my unit representing approximately 1/3 of the area and then said it was done with the work. My contractor identified other parts of my unit that have cracks and require repair and repainting. Their contractor did not indicate work was required on the area that HOA did not perform work on and/or said in some areas cracks are not sufficient to perform work.

For Issue 2 this was the agreement: " Repair cat walk on Unit "unit numbers" within 60 days"

The HOA has not performed the cat walk repair within 60 days of signing the agreement. It has now been 84 days. The HOA has gone through 4 vendors out to my property to look at the cat walk and even tried to schedule two of the contractors when I was away on business (I informed HOA 1 month ahead of time away for business but they still tried to want access to my property and then told me they weren't informed by the Management company of my absense)

For Issue 3 this was the agreement: "A rental change to CC&R's limiting to no more than 4 non-owner occupied units. Owner occupied units are excluded. Grandfather of existing 1,2,6 and 8. No further rental on property until one of the above returns back to owner occupied. Subject to vote of Association membership."

The HOA has not performed any process that I'm aware of to address this portion of the agreement and it has now been 84 days since signing of the agreement.

For Issue 4 my statement in filing a demand letter to the Association and then subsequent small claims action: I requested on August 27th via E-mail to the Association via its Management company access to Meeting minutes where the Board approved expenditures and then reimbursement to the Board President and Board Vice-President in amount of almost $1800 that was classified as purchase of Plants and Planters in the Aasociations July montly financial statement. (I am under opinion 10 small plants and 3 medium size plants in planters don't cost $1800) I was informed via e-mail by HOA Management company they would check with Board for these records. Note if minutes were present and they were not on file then they would have exceeded the 30 day requirement of having them on file as the reimbursement occurred more than 30 days prior to my request for the meeting minutes. There was no reply after that by the Management company and there has been no reply by the HOA to this request from my certified signature receipt demand letter I sent to the Association Board members.

For Issue 5 my statement in filing a demand letter to the Association and then subsequent Small Claims action: I requested on August 27th via e-mail to the Associaition via its Management company access to the receipts filed with the Association Management company for the expenditures by the Board President and Board Vice President that were reimburse by the Association to these Board Members in amount of almost $1800 that was classified in the Association July Monthly financial statements as Plants and Planters for Association reimbursement. The Management Company did not respond and did not provide me access to these records. The Association Board did not respond to my request for access to the records and it has now been 15 days since I sent the demand letter.

For issue one I asked for $1900 (quote of my contractor) to complete the work not finished by the HOA
For issue two I asked for $1500 (Verbal quote of Board President to me on cost for repair) to complete the work not started by the HOA
For issue three I asked for $2000 (Verbal quote of Board President to me on cost of attorney) to conduct process not being conducted by HOA
For Issue four and five I asked for $500 for each issue as allowed under the Davis-Sterling for not providing Association records as requested within 10 days.

SO NOW I received the following from the HOA via its Management Company in PDF e-mail

"name of HOA" HOA is notifying the property owner at "MY Address", "My Name", of a pending counter law suit for $2500.

If the baseless small claims lawsuit isn't dropped the HOA will commence with the paper work on December 1, 2010.

The unit holder has until 5 PM on November 30, 2010, to drop the lawsuit and submit the dismal to "name of management company" in writing. If the lawsuit isn’t dropped by November 30th, the HOA will commence with the counter lawsuit. If "my name", decides to drop the lawsuit after November 30, 2010, "my name" will be responsible for any court filing fees and service of process fees that were involved.

Regards,

"NAME OF HOA"

I know everyone has a right to file lawsuits so here are my Questions

1) What do you think of this
2) What venue does the HOA have to file their countersuit? (Does it have to be Small Claims or can it be another venue?)
3) What basis do you think the HOA has for a $2500 amount? (We are in California)
4) Other areas for discussion

Thanks,

Just as you tried to use the legal system to get what you wanted it would seem your HOA now indicates they will use the same system to defend itself against your action.

So the ball is now in your court. You can drop it or decide to take it to the next level.

I would guess they could file against you in small claims court or a higher court that would be their choice. Depending on the claims they would make against you and the baisi for those claims.

My suggestion get legal advice before you make any decision or take any further action.

You fired the first shot now they are threatening to fire back I would guess it depends on you as to where this goes from here.

Answering legal suits in court can get very expensive very quickly.

Also looking for substance to why $2500 on the counter lawsuit? What basis in corporation law or Davis Sterling law governing an Assocation can an Association identify an amount on a counter claim such as the one I am indicating?

Thanks

Glen, I understand that this forum is not for legal advice as I'm only asking for opinions.

Where do you do you see that the time set by the court has not expired. The signed mediated contract was dated August 11, 2010. It is now what 86 days. So for issue 1 and definately #2 they did not complete the work in 60 days as indicated by the agreement.

I disagree about good faith but only my opinion. In the first place the first lawsuit resulting in a mediated agreement was that they repaired and repainted every unit except mine. They did not enter into my patio's to inspect damage that needed repair but they did for every other unit. Thus, I sued to have my property repaired among other issues. Now they feel they can only do what THEY want to do for repairs versus what is required so how is that good faith? I have pictures of large cracked stucco walls on my unit that weren't repaired and identified as needing repair.

I don't know why you indicate in an aggressive manner that "I suspect that nothing they do will ever be stisfactory to you" All I ever have asked of my Association is that they conduct themselves in a manner that follows the laws that govern them. If they would have started down that road in the first place then yes I would be satisfied. Yes, I am the gadfly in the organization that actually cares how our HOA turns out whereas a huge majority just don't give a damm and concede control to the Board and then the Board runs ruffshod over the laws and processes that are required of it. A good example is that our Bylaws require a meeting every 3 months. In 24 months our Board has only conducted 1 meeting which was the annual meeting. Even then the Board Treasure didn't show-up to that one.

You are correct as that is what I posted at that time so I can see the misunderstanding.

To clarify:

After October 11th passed which represented the 60 day timeframe, I sent out a demand letter to the Association on October 18th requesting that they come into compliance with the agreement and to address issue of not providing Association documents that were requested as indicated above. On October 28th I had not received a reply to my demand letter, or for that fact any of the other request for resolution, and I then filed the small claims lawsuit.

I was wrong on my intial request as I afterward understood I had to let the 60 days pass even though they had communicated they were done with the work prior to that 60 day period.

Thanks,

David

David,

You said, (emphasis added by me)


Therefore, it could indicate that the repairs can me made based on the opinion of your contractor or the Associations contractor. It appears that the Association chose to go with their contractor.

Problem is, based on your post, the wording gives an option. The work can be done based on one of two contractors. It does not require that the two contractors collaborate or that a third contractor be brought in to decide which between the two estimates. It did not state that the work would be identified by a contractor mutually agreeable to the two parties.

Law becomes very specific on the meaning of individual words. Not on the intent of the agreement. Therefore, it appears - based on the paragraph above - that your Association met the specifics of the mediation.

If you wish to challenge those specific's I strongly recommend you consult with an attorney and ask "based on the information I've provided you - has the terms of the contract been met?". This is the question you need answered - as this is the question a judge will decide.

This is my layman's opinion.

Tim