Board is Not Forcing Owner who Carpeted Balcony to Pay for Related Water Damage

Started by ScottP9 • 12 replies • 1487 views

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ScottP9 (California)
Posts: 8

Posted:

California HOA.

Large water leak issue (and large related assessment of over $170,000 to home owners) from a few items -- one of which was an owner placing outdoor carpet on their balcony (trapped the water/moisture and prevented proper drainage and created leaks (then mold) into the unit below.).

We have had two detailed reports written up by experts assessing the problem -- both clearly mentioned the carpet on the balcony as a contributing factor. According to Davis-Stirling, home owners are clearly responsible for any damage caused to balconies from putting outside carpet on their balcony, yet the Board is not making this homeowner pay any greater share of the expense. The Board knows the owners (are long-time friends etc.).

I'm trying to understand if the Board has a legal obligation to ask (demand?) this homeowner pay for related damages (however they would determine what their share is). It doesn't seem appropriate that the other homeowners would share in this huge expense equally when one homeowner is much more highly responsible for the damage/expense (and the CA codes clearly state that the homeowners are responsible for damages).

The Board has retained an attorney to help manage this large project, but the attorney represents the Board and will not speak to homeowners... I'm deciding if it's worth taking this to small claims court as expenses there are low etc...

Doesn't the Board have a fiduciary responsibility to ensure homeowners are assessed correctly and those that owe more do so?

Thanks. This is a great resource...

LarryB13 (Arizona)
Posts: 4,099

Posted:

How many owners had carpeting on their balconies and how much of the damage can you attribute to those owners? Is the entire $170,000 assessment being levied to repair only units directly below the carpeted balconies?

The problem I see with going into small claims court is that the amount you can sue for is going to fall short of $170,000.

ScottP9 (California)
Posts: 8

Posted:

Thanks for the reply. The damage is to one side of the building. The only unit that has damage in it is the unit below the unit that had carpet placed on their balcony. No other balconies were cited for this reason in the report. I don't know of any other unit/balcony that has carpet on it, but I can confirm etc. The reports do not cite the portion of damage attributed to this unit's balcony carpet (but they were not asked to) -- they just cited it as one of the significant contributing factors.

The $170,000 is to repair a poor drainage system, side of the builing, rotted balcony (the one with the carpet), mold etc. in the unit w/ the damage... I understand I can't recoup all damages in small claims court, but I want to demonstrate that the Board can not simply choose to not impose rules on their friends etc. It is about the financial damages as well as ensuring the Board follows rules as we go forward.

NancyG3 (North Carolina)
Posts: 342

Posted:

Scott - Need more info. Are you a Director? Do you own the unit that is damaged? You stated "The only unit that has damage in it is the unit below the unit that had carpet placed on their balcony."

Is this a condo? Does the balcony belong to the homeowner or is it part of the outside building? Is the damage to this unit inside and outside? If inside then it is the owner of this unit responsibility to go after the owner above them. How long has the carpet been on the balcony? Was the carpet approved by the Board? You should try to determine how much it would cost to replace the balcony so you will know how much is involved if you decide to take to court. Usually small claims court has a limit of $5,000. you can sue for. If the damage is to the side of the building and the balcony was a small contributing factor do you think it is worth spending your money to get the Board to enforce the Covenant. Ask the Board if their intention is to have everything repaired then go after the homeowner for the cost of the balcony. Check with the Board further for their plans. Hope this helps in some way.

SamE1 (California)
Posts: 32

Posted:

Thanks Nancy. I am not a Director... Just one of the home owners. I am not the owner of the unit that was most damaged. Yes- these are condos. The balconies being discussed are directly attached to each individual unit/ exclusive property. They are though (I believe considered common areas). No... The home owner did not receive Board authority to install it and it is prohibited in our CC&Rs. The Board is not planning to try to recover any expenses from the unit that had the carpet.

NancyG3 (North Carolina)
Posts: 342

Posted:

Sam what relation are you to Scott who originally posted this forum? Has the carpet been removed? The only suggestion I can give to you both is to go to the monthly meetings and keep pushing the Board to enforce the CC&R's regarding the carpet. Try to persuade them to at least send the homeowner a letter regarding the damage the carpet caused. Or explain to you why they haven't contacted this homeowner. You can always try to get a petition from the other homeowners after explaining to them what is going on. Try and get more people on your side. Do this before going to an attorney. You definitely need more homeowners involved with you. It's difficult to get a Board to listen to 1 person. You could also go to an attorney (probably will cost $200. or more) and get them to write a letter for you before taking further action.

NancyG3 (North Carolina)
Posts: 342

Posted:

Forgot to add. You write the Board a letter stating your concerns. This way it will be proof that you tried to work with the Board. Since you have decided to try and get something done about this situation, it is going to take a lot of your efforts. Not going to be an easy undertaking. Good luck!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By NancyG3 on 10/14/2012 2:06 AM
Scott - Need more info. Are you a Director?

Quote:

Posted By SamE1 on 10/14/2012 3:53 AM
Thanks Nancy. I am not a Director... Just one of the home owners.

I thought this story sounded familiar. Now that we know ScottP9 and SamE1 appear to be the same person, Sam had brought this issue up earlier:

See Subject: Board Only Used 1 Opinion for $150,000 Building Repair Work -- Being Assessed to Home Owners!

Sam/Scott,

At lest you succeeded in getting another opinion (as the earlier thread had indicated only one bid was received). I noted that the Special assessment went up between the threads (from 150K to 170K).

Was the carpeting approved by the Association? If it was, then the fault should be with the Association for approving it.

It is likely that there is language within your governing documents that if one member's action causes damage to the common area, then that member is responsible to pay for the damage (rather than assessing everyone for it). Since both reports specify that the carpet was a contributing factor, I suspect that the Association has a case. How strong of one would be determined by the courts (if it goes that far).

The person who placed the carpeting on the balcony may be able to have their homeowners insurance pay for that portion of the assessment attributed to the carpet. They would need to check with there insurance company.

SamE1 (California)
Posts: 32

Posted:

Thanks Nancy. Sorry for the confusion. I am his brother. We are co-owners of the condo.

SamE1 (California)
Posts: 32

Posted:

The estimates vary slightly depending on which scope of work they go with, how much repair is approved for the damaged unit etc. they won't know the final number until they start testing certain areas, but that is the approx range.

SamE1 (California)
Posts: 32

Posted:

And no, the carpet was not approved by the HOA.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Sam

Are you saying the cost of repairs should be borne by those with carpet on their balconies, versus by the association?

My first blush is the water intrusion is more then a few balconies with carpet.

ScottP9 (California)
Posts: 8

Posted:

I'm saying those with carpet on their balconies should pay an additional amount for the repair expenses. The expert reports clearly cite the carpet on this balcony as a contributing factor and it is clearly prohibited in our CC&Rs. Davis-Stirling (codes that regulate CA HOAs) state an HOA can hold an owner responsible if they carpet their balcony because of the potential damage.

I don't think they should pay the entire expense (i.e, $150k-$170k), but it does seem appropriate that they pay more than every other home owner pay given they are more directly responsible for the damage.

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