CC&R Enforcement - Who needs to engage the attorney?

Started by JeanL4 • 8 replies • 1564 views

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JeanL4 (California)
Posts: 6

Posted:

I am a 2nd floor condo office owner who needs to have my contractor access from downstair's unit to do some plumbing to my unit.
HOA engaged the HOA attorney to review the CC&R and did not find the section about right of access.

I found the lawyer who drafted the original CC&R and he pointed me to the clause the specifically address right of access for utilities.

I forwarded the section of the CC&R to the owner downstairs and both the HOA manager and I contacted the owner and got no response.

The lawyer who drafted the original CC&R said we have a good case and he's ready to represent me. But, should I be engaging the attorney or should the HOA be engaging the attorney?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Jean,

You are the one with the problem and you are the one who wants it solved.

The HOA has no problem and is not in need of a solution.

I dunno but it sure seems like you are the one that needs to hire an attorney.

GlenL (Ohio)
Posts: 5,491

Posted:

The original attorney doesn't seem to think it would be a conflict of interest, so if you feel comfortable with what he is telling you, go for it.

Studies show that 5 out of 4 people have problems with fractions

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By LarryB13 on 04/23/2014 1:10 PM
Jean,

You are the one with the problem and you are the one who wants it solved.

The HOA has no problem and is not in need of a solution.

I dunno but it sure seems like you are the one that needs to hire an attorney.

I agree.

RayC4 (Virginia)
Posts: 173

Posted:

I also see Larry's point but I'm going to play contrarian......

Are the CC&R's being violated here? I think yes they are. Who is responsible for their enforcement? Isn't that the HOA? And specifically the BOD?

What if Jean puts this in front of the BOD and requests action, based on non-compliance with the CC&R's? And if there is already a HOA attorney on retainer, why shouldn't that person carry the ball instead of forcing Jean to hire her own private attorney? Now instead of Jean standing alone, she's potentially got herself, the BOD, the HOA, and the HOA attorney standing with her.

Her neighbor might well re-think his position, especially when he realizes he's going to help pay for Jean's legal representation.

FredS7 (Arizona)
Posts: 927

Posted:

I think the HOA would take legal action if this were a required repair. However (based on previous postings) it's not a repair- it is a modification. I suspect JeanL4 will need to hire the lawyer.

It might be worth estimating what it would cost, and asking the downstairs owner if there is a sum of money that would enable access.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Jean,

Have you discussed the issue with the downstairs unit owner? Perhaps writing a contract with them to a)specify the work, b)stipulate that the area will be returned to how it was (holes filled, painted, etc.), c) specify a time frame, d) specify penalties for failing to complete in the time frame and e) discuss any compensation for the inconvenience ?

I agree with Fred, it's an HOA issue if it's a repair and your issue if it's simply modifying the plumbing to accommodate your desired plans for the space above.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By RayC4 on 04/23/2014 2:52 PM

Are the CC&R's being violated here? I think yes they are. Who is responsible for their enforcement? Isn't that the HOA? And specifically the BOD?

Under most declarations, the board may enforce the CC&R's but has the discretion to choose whether to do so. In those situations where the board chooses to sit out a fight, it becomes the owner's burden to enforce the declaration.

Quote:

Posted By RayC4 on 04/23/2014 2:52 PM

What if Jean puts this in front of the BOD and requests action, based on non-compliance with the CC&R's? And if there is already a HOA attorney on retainer, why shouldn't that person carry the ball instead of forcing Jean to hire her own private attorney? Now instead of Jean standing alone, she's potentially got herself, the BOD, the HOA, and the HOA attorney standing with her.

From what Jean wrote above I took it to mean that the BOD has already sought advice from its own attorney and their attorney said Jean has no case. While it sounds like the board's attorney is none too smart, the board now has no reason to take up Jean's position and become her advocate or ally. In fact, one could argue that the board would be in breach of their fiduciary duty if they used the association's resources to take up Jean's cause after receiving legal advice that she is not entitled to the relief she seeks.

Quote:

Posted By RayC4 on 04/23/2014 2:52 PM

Her neighbor might well re-think his position, especially when he realizes he's going to help pay for Jean's legal representation.

I could not agree more!

Since Jean and her neighbor are bound by a contract in the form of the declaration, she will be entitled to an award of her costs and legal fees if she prevails. He will not be paying a part of Jean's fight; he will pay for all of her costs plus his own. Right now her neighbor is playing a foolishly expensive game.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By FredS7 on 04/23/2014 3:52 PM
I think the HOA would take legal action if this were a required repair. However (based on previous postings) it's not a repair- it is a modification. I suspect JeanL4 will need to hire the lawyer.

It might be worth estimating what it would cost, and asking the downstairs owner if there is a sum of money that would enable access.

Good observation on required versus desired.

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