Lawyers as "Legal Experts"

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RichardP13 (California)
Posts: 1,767

Posted:

In a previous post someone wrote, So yes always do more research before taking your MCs advice. They are not legal experts. They are just theones who write the checks to them..."

We have a case where we want to turn off water to residents that are seriously delinquent in their water payments.

For the record, we are 317 single family homes, submetered and water billed by a third party,master bill from Los Angeles Water and Power is controlled by another association next to us. Delinquencies at present $80K. Two attorney's opinion, on e stated they wouldn't, another said you can't based on the reference below.

I would like someone who has time to read the opinion and the "case law that supports their opinion and tell me what you think.

http://www.davis-stirling.com/MainIndex/TurningOffWater/tabid/2610/Default.aspx#axzz34Cuj9sr7

http://www.davis-stirling.com/MainIndex/Statutes/CivilCode7893/tabid/3465/Default.aspx#axzz1k0mlVu1H

http://www.davis-stirling.com/MainIndex/CaseLaw/FrancesTvVillageGreen/tabid/827/Default.aspx#axzz34Cuj9sr7

PitA1
Posts: 222

Posted:

your attorneys are correct

#1 states that HOA is in effect a landlord

#2 states a landlord (HOA, see #1) may NOT disconnect a utility

#3 decided that the landlord, a/k/a HOA (see #1), is responsible for ALL damages caused by the lack or disconnect of a utility under its control

YOU MAY NOT TURN OFF THE WATER - PERIOD - DONE DEAL

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 8:43 AM
your attorneys are correct

#1 states that HOA is in effect a landlord

#2 states a landlord (HOA, see #1) may NOT disconnect a utility

#3 decided that the landlord, a/k/a HOA (see #1), is responsible for ALL damages caused by the lack or disconnect of a utility under its control

YOU MAY NOT TURN OFF THE WATER - PERIOD - DONE DEAL

#1 and #2, If you read what it says, it applies to landlords who with the "intent to terminate the occupancy of a lease". First, we are not landlords, disputes in an HOA between tenants and associations must be conducted with the owners. Second, we are not trying to terminate the occupancy of a lease, we are trying to collect on a debt.

#3, The plainiff installed am electric light that, for whatever reason, didn't comply with the association ARC standards, and was asked/told to remove. Instead, plainiff, not the association, cut the power to the exterior light in question, thus eliminating all power to their unit.

As unfortunate as the situation was to the plainiff, they made bad choices, installing a light without approval and second, hiring a bad electrician, or not hiring one in the first place and trying to do the work themselves.

What does this case have to do with turning off utilities for a delinquent account?

Here is an important section of the ruling:

"Since there are no reported California cases dealing with the liability of a condominium association in a situation such as this, the parties have analogized this case to four landlord-tenant cases involving similar facts. The reasoning employed by this line of landlord-tenant cases is equally applicable here. In two of these cases the courts found the landlord liable, while in the other two they declined to do so."

Another point to consider, IMO, is that we would refer any incidents with a renter to the owner "landlord". If the above case says the nassociation is in fact the landlord, we should be able to deal directly with the tenant, even though with have no contract, paperwork, lease or anything to go by.

Sounds like we want our cake and the ability to eat it, too.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Despite your careful counterarguments, Richard, I see it the way PitA does. The cited case also seems to show that the HOA would be liable if anything damaging happened due to the lighting being off.

I, though, didn't read it very carefully myself!

Are there any meaningful privileges that you can suspend?

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By CarolR11 on 06/11/2014 10:21 AM
Despite your careful counterarguments, Richard, I see it the way PitA does. The cited case also seems to show that the HOA would be liable if anything damaging happened due to the lighting being off.

I, though, didn't read it very carefully myself!

Are there any meaningful privileges that you can suspend?

But the homeowner turned the electricity off, not the HOA??

And if we are now considered landlords, that opens a new can or worms.

RichardP13 (California)
Posts: 1,767

Posted:

Even if an HOA is considered a "landlord", which legally it's not, Civil Code 789.3 states a landlord cannot shut off utilities, "with the intent to terminate the occupancy of a lease". We are not trying to terminate a lease, or evict someone, which legally, we don't have with either the tenant or the owner.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

We could suspend their voting rights and not let them swim in the pool. I'm sure that would be meaningful. Not being able to take a shower would probably be more meaningful.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Sorry, Richard, i got the water issue an the electricity issue mixed up. I don't think "with the purpose of terminating occupancy" is relevant. I believe that what's more relevant is that water is needed to live safely, and that's why we can't shut off most utilities. I also think that's why we could, if we had control, shut off cable service.

Some here would respond to removing pool privileges, some to gym privileges. So It's worth a try to suspend pool privileges. If this HOA is a MC client of yours, Richard, I'd worry a lot about getting your client into legal trouble by shutting off the water.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Richard,

There are days when I wished I lived in CA just so I could go kick a lazy lawyer from Adams Kessler ("AK"). Their opinions are almost always based on some misinterpretation of case law and statutes.

In this case, AK argues that all associations are landlords and looks to Frances T. v. Village Green for support. However, the Frances T. court expressly stated that "under the circumstances of this case the Association should be held to the same standard of care as a landlord." Among those circumstances were that Village Green is a condo and the association owns and controls all property not deeded as part of the owners' living spaces. Also, Frances T. dealt with the association's duty to provide security on its common grounds. Water was not an issue in that case.

AK then makes another giant leap in logic by asserting that not only are all associations landlords (even though the court did not reach that conclusion) but that all persons residing therein are tenants and thus subject to the constraints of Civil Code 789.3.

Your situation is significantly different from what AK envisions. You are not a condominium and thus you have none of the duties of a landlord. Tenants typically obtain their water as part and parcel of the rental agreement or they contract directly with the local water company. While the landlord cannot lawfully shut off the water to his tenant, the water company can lawfully shut off the water due to non-payment.

I assume that there is a contract in some form that requires the owners in your association to pay for the water they use and the amount due is not included in their assessments. That is, they have notice that they must pay and an implicit or explicit notice that failure to pay will result in termination of service. In this regard, the association is the water company which can shut off service for non-payment.

If it was me, I would shut off the deadbeats' water in a heartbeat.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By CarolR11 on 06/11/2014 10:56 AM
Sorry, Richard, i got the water issue an the electricity issue mixed up. I don't think "with the purpose of terminating occupancy" is relevant. I believe that what's more relevant is that water is needed to live safely, and that's why we can't shut off most utilities. I also think that's why we could, if we had control, shut off cable service.

Some here would respond to removing pool privileges, some to gym privileges. So It's worth a try to suspend pool privileges. If this HOA is a MC client of yours, Richard, I'd worry a lot about getting your client into legal trouble by shutting off the water.

LADWP shuts off off water every day of the week and twice on Sunday.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By LarryB13 on 06/11/2014 11:18 AM
Richard,

There are days when I wished I lived in CA just so I could go kick a lazy lawyer from Adams Kessler ("AK"). Their opinions are almost always based on some misinterpretation of case law and statutes.

In this case, AK argues that all associations are landlords and looks to Frances T. v. Village Green for support. However, the Frances T. court expressly stated that "under the circumstances of this case the Association should be held to the same standard of care as a landlord." Among those circumstances were that Village Green is a condo and the association owns and controls all property not deeded as part of the owners' living spaces. Also, Frances T. dealt with the association's duty to provide security on its common grounds. Water was not an issue in that case.

AK then makes another giant leap in logic by asserting that not only are all associations landlords (even though the court did not reach that conclusion) but that all persons residing therein are tenants and thus subject to the constraints of Civil Code 789.3.

Your situation is significantly different from what AK envisions. You are not a condominium and thus you have none of the duties of a landlord. Tenants typically obtain their water as part and parcel of the rental agreement or they contract directly with the local water company. While the landlord cannot lawfully shut off the water to his tenant, the water company can lawfully shut off the water due to non-payment.

I assume that there is a contract in some form that requires the owners in your association to pay for the water they use and the amount due is not included in their assessments. That is, they have notice that they must pay and an implicit or explicit notice that failure to pay will result in termination of service. In this regard, the association is the water company which can shut off service for non-payment.

If it was me, I would shut off the deadbeats' water in a heartbeat.

The power to shut off the water is in our CCRs and Cost Sharing Agreement with the other association. Both of the documents are recorded documents and part of our governing documents. It is not like they would not have known this could happen.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By RichardP13 on 06/11/2014 10:40 AM
Even if an HOA is considered a "landlord", which legally it's not, Civil Code 789.3 states a landlord cannot shut off utilities, "with the intent to terminate the occupancy of a lease". We are not trying to terminate a lease, or evict someone, which legally, we don't have with either the tenant or the owner.

I have no idea if the HOA can legally turn off utilities for failure to pay in any given jurisdiction, but my personal opinion is that if the utility company can cut electricity/water/etc. then the HOA should have that right also if part of the unpaid dues goes to pay utilities. Of course, my opinion and $5.00 will get you a latte at Starbucks.

Escaped former treasurer and director of a self managed association.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Ah! thanks for citing your governing docs, Richard. I'd think that's important.

PitA1
Posts: 222

Posted:

Richard:

from #1:

California's Supreme Court has determined that associations are "for all practical purposes" a landlord. (Francis T v. Village Green.)

PitA1
Posts: 222

Posted:

What does this case have to do with turning off utilities for a delinquent account?

#3 has to do with LIABILITY

if the HOA turns off a utility it would be responsible for ALL damages caused by said (illegal) action

PitA1
Posts: 222

Posted:

the facts have been stated

YOUR attorneys have said the dreaded "N" word to 'gasp' YOU

NO - you may NOT turn off someone's utilities w/o appropriate legal notice.

The PUBLIC utilities have the policy and procedure for shut-off IN THEIR TARIFFS which were approved by a 'public service commission'.

'Sterling-Davis' also says the "N" word.

now for MY opinion:

only an ass-void would even consider cutting off a necessary utility w/o a court order

your attorneys are too polite to use the "A-H" word

RichardP13 (California)
Posts: 1,767

Posted:

This is what our CCRs and Cost Sharing state:

6.4.3.1 In the event that any owner or occupant of a condominium
unit on either Parcel fails to timely pay any water bill presented by the Owner of the affected
Parcel, then in addition to all other remedies available at law, in equity or under any recorded
declaration of covenants, conditions and restrictions affecting the condominium unit, the Owner
of the Parcel on which such condominium owner or occupant resides shall have the right to shut
off water to the condominium unit whose owner or occupant failed to pay for services until
such time as the non-paying condominium owner or occupant has paid its water bill in full
(including any late charges or other fees)

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 12:01 PM

What does this case have to do with turning off utilities for a delinquent account?

#3 has to do with LIABILITY

if the HOA turns off a utility it would be responsible for ALL damages caused by said (illegal) action

The HOA didn't turn off the power, the homeowner did.

PitA1
Posts: 222

Posted:

ps. turning off the water would render the 'unit/home' uninhabitable which would force the termination of its occupancy

sounds like an attempted eviction to me

the BOD is evidently reluctant to pursue a proper and legal collection policy

legal service of debt - certified mail

lock out re: common element amenities

termination of voting rights

recording of lien

attorney for collection

foreclosure

? why on earth even bother with utility shut-off ?

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 12:09 PM
the facts have been stated

YOUR attorneys have said the dreaded "N" word to 'gasp' YOU

NO - you may NOT turn off someone's utilities w/o appropriate legal notice.

The PUBLIC utilities have the policy and procedure for shut-off IN THEIR TARIFFS which were approved by a 'public service commission'.

'Sterling-Davis' also says the "N" word.

now for MY opinion:

only an ass-void would even consider cutting off a necessary utility w/o a court order

your attorneys are too polite to use the "A-H" word

I have legal notice, recorded CCRs that every homeowner agreed to in principal upon taking possession of their unit.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 11:59 AM
Richard:

from #1:

California's Supreme Court has determined that associations are "for all practical purposes" a landlord. (Francis T v. Village Green.)

Where does it say the Supreme Court says the association is similar to an landlords. Landlords do have a different set of responsibilities than an association. All the case cited refer ONLY to apartments. Again, the lady turned her own power off. In this case, that is the ONLY reference to the California Supreme Court.

O'Connor, on which the majority rely in holding condominium associations relevantly similar to landlords, has been subjected to strong criticism on its own terms. (Note, Condominium Age-Restrictive Covenants Under the Unruh Civil Rights Act: O'Connor v. Village Green Owners Association (1984) 18 U.S.F.L.Rev. 371; see Barnett, The Supreme Court of California, 1981-1982: Foreword: The Emerging Court (1983) 71 Cal.L.Rev. 1134, 1143-1146.) In any event it is plainly inapposite: whether a condominium association is similar to a landlord for the purposes of an anti-discrimination statute that covers "'all business establishments of every kind whatsoever'" (O'Connor, supra, 33 Cal.3d at pp. 793-794) is irrelevant to the issue whether such an association is similar to a landlord for the purposes of the general common law of torts. Kwaitowski and O'Hara, which discuss the basis and scope of the landlord's potential liability, constitute too slender a reed to support the majority's extension of such potential liability to a condominium association.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 12:16 PM
ps. turning off the water would render the 'unit/home' uninhabitable which would force the termination of its occupancy

sounds like an attempted eviction to me

the BOD is evidently reluctant to pursue a proper and legal collection policy

legal service of debt - certified mail

lock out re: common element amenities

termination of voting rights

recording of lien

attorney for collection

foreclosure

? why on earth even bother with utility shut-off ?

Why would a utility company shut off water? Maybe to get paid. DUH!! Rocket science.

We have performed all the remedies mentioned in our CCRs, now we go to the final step and that is shut off.

Eviction? That means foreclosure, different path to follow.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By PitA1 on 06/11/2014 11:59 AM
Richard:

from #1:

California's Supreme Court has determined that associations are "for all practical purposes" a landlord. (Francis T v. Village Green.)

That blanket statement is not found in the Supreme Court's opinion; that is Adam Kessler's misinterpretation. Only Adams Kessler equates a condo association's duty to provide security with a prohibition against turning off a utility that has not been paid for.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By RichardP13 on 06/11/2014 12:14 PM
This is what our CCRs and Cost Sharing state:

6.4.3.1 In the event that any owner or occupant of a condominium
unit on either Parcel fails to timely pay any water bill presented by the Owner of the affected
Parcel, then in addition to all other remedies available at law, in equity or under any recorded
declaration of covenants, conditions and restrictions affecting the condominium unit, the Owner
of the Parcel on which such condominium owner or occupant resides shall have the right to shut
off water to the condominium unit whose owner or occupant failed to pay for services until
such time as the non-paying condominium owner or occupant has paid its water bill in full
(including any late charges or other fees)

Richard,

I do not know what more authority you could ask for. "Shall have the right to shut off water."

PitA1
Posts: 222

Posted:

If, in fact, this is so 'cut and dried' why were TWO attorneys consulted in the first place?

Perhaps because it is OBVIOUS that a necessary utility may NOT be 'arbitrarily' cut off.

Water, if supplied to multiple users, is considered a public benefit utility even if 'privately' supplied.

Its usage and distribution is WELL REGULATED and possibly under a 'utility commission's' oversight and regulation.

'Antique' CCRs are OFTEN superseded by actual law, especially re: utilities.

Perhaps the necessary tariffs are not on file. Perhaps the required policy and procedures regarding payment and cut-off are not in place.

DOH

GOOD LUCK IN COURT Y'ALL

ps. y'all are ABSOLUTELY POSITIVELY sure there is no MEDICAL necessity for the water in question? even a prescribed 'sitz bath' ?

are you sure you're sure ?

RichardP13 (California)
Posts: 1,767

Posted:

Larry

You're right. I have researched any case law that disallows an association turning off water in the same situation and can't find anything.

I do understand, that if water or any utilities are included in the monthly or yearly assessment, it's impossible, unless you sub meter the unit, where the unit owner is responsible for their ACTUAL usage. I also know you need to amend the documents to make it legal.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 2:04 PM
If, in fact, this is so 'cut and dried' why were TWO attorneys consulted in the first place?

Perhaps because it is OBVIOUS that a necessary utility may NOT be 'arbitrarily' cut off.

Water, if supplied to multiple users, is considered a public benefit utility even if 'privately' supplied.

Its usage and distribution is WELL REGULATED and possibly under a 'utility commission's' oversight and regulation.

'Antique' CCRs are OFTEN superseded by actual law, especially re: utilities.

Perhaps the necessary tariffs are not on file. Perhaps the required policy and procedures regarding payment and cut-off are not in place.

DOH

GOOD LUCK IN COURT Y'ALL

ps. y'all are ABSOLUTELY POSITIVELY sure there is no MEDICAL necessity for the water in question? even a prescribed 'sitz bath' ?

are you sure you're sure ?

There is no law, only someone's opinion

DUH!!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

FYI: My HOA was able to turn off water to those homes who did not pay their dues or were delinquent. It was written into our CC&R's as well. We did have the legal right to do so. There are still a few HOA's that can still do so. We had specific reasons why we could.

First our HOA had 1 water meter for the entire HOA of a 107 homes. The HOA paid for the water out of the dues. That also meant that if a pipe broke we also had to pay for the repairs. Which can be very expensive. We then could control the water supply because we had one bill. Which means we could withhold water privileges to those who did not pay.

Fast forward a few years and the HOA decided to go for separate water meters for each home. It required a special assessment and turning our roads to the city. The benefit for the HOA was we could lower our dues as we no longer had to carry the water bill load except for the clubhouse/pool. Plus no longer having to foot the bill for repairs. We did lose the ability to turn off water for non payment and had to rewrite our CC&R's to reflect these changes.

That process took a few years, several thousands of dollars, and a lot of work on updating documents. We found the process of lien and foreclosure the best way to go instead of water shut off. A lot less threat of physical harm if anyone saw us with a pipe wrench too...

So yes one can turn off water for homes behind in dues. They can't deny other utilities as the HOA does not provide them nor pays for them. The HOA is NOT a landlord in my opinion but can be considered that under some terms and conditions.

Former HOA President

PitA1
Posts: 222

Posted:

? no laws ?

merely 500+ pages

see:

http://www.cdph.ca.gov/certlic/drinkingwater/Pages/Lawbook.aspx

http://www.cdph.ca.gov/services/Documents/fdb%20HSC111192%20Water.pdf

but y'all do whatever y'all THINK is correct

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 4:53 PM
? no laws ?

merely 500+ pages

see:

http://www.cdph.ca.gov/certlic/drinkingwater/Pages/Lawbook.aspx

http://www.cdph.ca.gov/services/Documents/fdb%20HSC111192%20Water.pdf

but y'all do whatever y'all THINK is correct

Costco sells bottle water very cheap. Think I will pull the meters.

Thanks for the advice!!

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Posted By MelissaP1 on 06/11/2014 2:33 PM
FYI: My HOA was able to turn off water to those homes who did not pay their dues or were delinquent. It was written into our CC&R's as well. We did have the legal right to do so. There are still a few HOA's that can still do so. We had specific reasons why we could.

State law typically dictates who can shut off utilities and its typically a state regulated utility company such as the water or power company who have to follow certain rules and paperwork to do so. Just because you added it to your CCR/Bylaws, and did shut people off doesn't mean it was legal. It likely violates the law as it puts people in danger. It just means no one challenged you in high level courts. I could make a CCR/Bylaw that says I can murder people in my HOA, that doesnt make it so and is still against state law.

That said...... no law dictates what the water pressure should be. So if the HOA or home needed a kick in the pants to pay the bill, people have been known to schedule "maintenance" on the shut off valve, slow it to a slow stream, enough so people will be really annoyed in the shower and the toilet takes 30 minutes to fill, but enough so they can get water for medications. If people complain let them know if cannot be repaired until the bill is paid.

That bill will get paid, guaranteed.

PitA1
Posts: 222

Posted:

Melissa;

In CA if the HOA provides water to more than 4 homes but less than 200 it becomes a 'small water utility provider' and is subject to 'a whole bunch' of rules and regs on the STATE level.

You really really can't 'just shut 'em down' for non payment w/o ALSO following all the public utility rules and regs.......

Public since members of the general public may be exposed to the water as guests of the members with a reasonable expectation of safety.

Very similar as to why (for licensing, not ADA) HOA pools are 'public'.

Y'ALL have a nice continuing argument throwing plenty of Toric Ka-Ka

If y'all tried this crap on me I would refer the issue to Mssrs. Smith and Wesson.

PitA1
Posts: 222

Posted:

Steve;

our posts crossed

well said

I tend to be overly dramatic

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SteveM9 on 06/11/2014 5:03 PM

I love it. Another way to skin a cat.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Excellent, Steve! Is this doable, Richard??

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By SteveM9 on 06/11/2014 5:03 PM

There is no case law that says you can't. Our CCRs, which have not been amended since the inception of the community, state, after all remedies have been exhausted, the association shall, not may, have the right to shut off water until the paid is paid in full.

Messing with the pressure is tampering. I wouldn't even consider that option.

TimB4 (Tennessee)
Posts: 21,059

Posted:

My understanding was that you could not cut the water off but you could slow it down to a trickle.

However, I have no real experience with this issue nor can I offer any documents for the basis of that understanding. I simply recall reading (very very long ago) that, due to health reasons, you could not fully secure the water (as it needed to be available for medications, etc.). It's very possible that I misunderstood or that what I recall has been changed over the years.

PitA1
Posts: 222

Posted:

to simplify:

w/o 'running water' there is no valid c of o

w/o a c of o the structure is uninhabitable

you, as an HOA not a valid utility, may NOT render a 'unit' uninhabitable w/o a court order

it matters not what your covenants state

you may NOT run someone out of their home w/o a court document

the fact that some HOAs have 'gotten away with it' matters NOT

END OF CASE

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By TimB4 on 06/11/2014 6:29 PM
My understanding was that you could not cut the water off but you could slow it down to a trickle.

However, I have no real experience with this issue nor can I offer any documents for the basis of that understanding. I simply recall reading (very very long ago) that, due to health reasons, you could not fully secure the water (as it needed to be available for medications, etc.). It's very possible that I misunderstood or that what I recall has been changed over the years.

There are you groups that you have to protect, infants and the elderly. Neither one applies.

PitA1
Posts: 222

Posted:

QUESTION: Can the HOA cut off water for non-payment of fees or fines (we do not have individual water bills)?

ANSWER: Some older Condominium projects were apartment conversions, also some townhome developments were built with a common water supply to all of the units. In both cases HOA fees may be used to pay the water bills. Depending on the utility that supplies the water, there may rules or regulations concerning discontinuing water service which may prevent the water from being turned off. But, it is possible that…

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If you are in a condominium where the association pays the water bill with your dues, the Georgia Condominium Act allows the association to cut your water but only in the following circumstances. First, the Association must have a final court judgment against you for an amount in excess of $750. Without a judgment, no cut off. Second, the association documents recorded at the court house must provide the right to cut off the utility. No provision in the documents, no cut off. Finally, the Association must give you the same notice before a cut off as the utility would have to give.

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Homeowner and condominium associations are increasingly adopting policies for shutting off water or other utilities where an owner has fallen behind in his or her assessments, owes fines or penalties for violating the governing documents, or is supposedly refusing to follow rules. Although people who own in a homeowner association generally are obligated to pay assessments, associations commonly use these water shut-off policies in order to force members to pay assessments, fines, penalties or other charges that they may not owe. These owners often face an unfair choice: Pay what we tell you to pay or live without water.

What many homeowners do not know is that such policies in many cases may be unenforceable. There is no reported case in Arizona that authorizes a homeowners association to shut off water or other utilities. The determination of whether the policy is enforceable depends on several factors, including (a) an association’s governing documents, (b) Arizona’s planned community and condominium laws, (c) the history of the policy and its enforcement, and (d) whether the association is seeking to collect assessments or fines and penalties. In many cases, the water shut off policy is not enforceable and can be successfully challenged in court.

----------------------------------------

Essentially the HOA is not permitted to cut services that are deemed to be vital to the health and safety of the use and enjoyment of the property. That specifically includes water, which means that if such a service was cut, you can threaten to contact the attorney general's office and have them investigate the HOA for wrong-doing. I do suggest that in your situation, if you wish to get the water up right away, see if you have a local LegalAid office available since they may be able to provide you with free or very low cost representation, simply because going through the Attorney General's office will be a fairly long process.

---------------------------------------------

etc etc etc

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 6:56 PM
to simplify:

w/o 'running water' there is no valid c of o

w/o a c of o the structure is uninhabitable

you, as an HOA not a valid utility, may NOT render a 'unit' uninhabitable w/o a court order

it matters not what your covenants state

you may NOT run someone out of their home w/o a court document

the fact that some HOAs have 'gotten away with it' matters NOT

END OF CASE

As long as they are not infants or elders, then as I said, Costco sells water and if they want to continue with personal hygiene, I would suggest a family member residence.

END OF STORY!

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By PitA1 on 06/11/2014 7:05 PM
QUESTION: Can the HOA cut off water for non-payment of fees or fines (we do not have individual water bills)?

ANSWER: Some older Condominium projects were apartment conversions, also some townhome developments were built with a common water supply to all of the units. In both cases HOA fees may be used to pay the water bills. Depending on the utility that supplies the water, there may rules or regulations concerning discontinuing water service which may prevent the water from being turned off. But, it is possible that…

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If you are in a condominium where the association pays the water bill with your dues, the Georgia Condominium Act allows the association to cut your water but only in the following circumstances. First, the Association must have a final court judgment against you for an amount in excess of $750. Without a judgment, no cut off. Second, the association documents recorded at the court house must provide the right to cut off the utility. No provision in the documents, no cut off. Finally, the Association must give you the same notice before a cut off as the utility would have to give.

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Homeowner and condominium associations are increasingly adopting policies for shutting off water or other utilities where an owner has fallen behind in his or her assessments, owes fines or penalties for violating the governing documents, or is supposedly refusing to follow rules. Although people who own in a homeowner association generally are obligated to pay assessments, associations commonly use these water shut-off policies in order to force members to pay assessments, fines, penalties or other charges that they may not owe. These owners often face an unfair choice: Pay what we tell you to pay or live without water.

What many homeowners do not know is that such policies in many cases may be unenforceable. There is no reported case in Arizona that authorizes a homeowners association to shut off water or other utilities. The determination of whether the policy is enforceable depends on several factors, including (a) an association’s governing documents, (b) Arizona’s planned community and condominium laws, (c) the history of the policy and its enforcement, and (d) whether the association is seeking to collect assessments or fines and penalties. In many cases, the water shut off policy is not enforceable and can be successfully challenged in court.

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Essentially the HOA is not permitted to cut services that are deemed to be vital to the health and safety of the use and enjoyment of the property. That specifically includes water, which means that if such a service was cut, you can threaten to contact the attorney general's office and have them investigate the HOA for wrong-doing. I do suggest that in your situation, if you wish to get the water up right away, see if you have a local LegalAid office available since they may be able to provide you with free or very low cost representation, simply because going through the Attorney General's office will be a fairly long process.

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etc etc etc

John

Why would you continue to post this nonsense. none of what you wasted your time on applies to us.

PERIOD!

GlenL (Ohio)
Posts: 5,491

Posted:

Richard I know what you posted from your CC&R's but what about the rest of D-S, do you think that would apply at all? For instance do you need to put it in the fine schedule that after say 90 days delinquent the HOA will turn off the taps and would you have to give notice of a violation and give them time to appeal?

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

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By GlenL on 06/11/2014 9:11 PM
Richard I know what you posted from your CC&R's but what about the rest of D-S, do you think that would apply at all? For instance do you need to put it in the fine schedule that after say 90 days delinquent the HOA will turn off the taps and would you have to give notice of a violation and give them time to appeal?

We created a Water Collection Policy, which is separate from our Assessment Collection Policy. It is distributed annually to our members as part of our Annual Disclosures. The process or education (as we like to refer to it as) takes between 90-120 days. We give the delinquent owner every opportunity to work with the owner. The employ due process every step of the way.

RichardP13 (California)
Posts: 1,767

Posted:

Meant to say "we give the delinquent owner every opportunity to work with the association"

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By RichardP13 on 06/11/2014 7:09 PM

John

Why would you continue to post this nonsense. none of what you wasted your time on applies to us.

PERIOD!

John,

This apparently is a hot-button issue for you but I have to agree with Richard. You are about to snatch away Melissa's crown as the Queen of Misinformation.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

My HOA shut off water to non payers for about 20 years. Not one lawsuit in that time period over it. If it was for the decision for separate water meters, this practice would still be going.

My question now is... Can a utility company shut off services for non payment if we use the logic that it is no due to health or age? In our HOA if we could not pay the bill to the water as it was ONE bill, then the WHOLE HOA was cut off. So cutting off the ones not contributing and thus still using services got stopped.

I see here all the time people wanting to stop non payers access or services if not paying. Well if water is a service that the HOA pays for, then why can it deny that if we use that logic? We also denied access to clubhouse and pool too. Lawnmowing is our only requirement to provide.

I am a realist and not a theorist. So Queen of misinformation title is okay with me when it comes to comparing my advice to what anyone here gets off the web in La La land...

Former HOA President

PitA1
Posts: 222

Posted:

;)

point(s) taken

bye, y'all

PitA1
Posts: 222

Posted:

....after all remedies have been exhausted....

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Posted By MelissaP1 on 06/12/2014 4:25 AM
My HOA shut off water to non payers for about 20 years. Not one lawsuit in that time period over it. If it was for the decision for separate water meters, this practice would still be going.

Again, Melissa, just because you shut off people's water for 20 years... STILL DOES NOT MAKE IT LEGAL, in the eyes of the state law. That fact that you were never sued for it is just more proof no one looked into the legality of it.

Quote:

My question now is... Can a utility company shut off services for non payment if we use the logic that it is no due to health or age? In our HOA if we could not pay the bill to the water as it was ONE bill, then the WHOLE HOA was cut off. So cutting off the ones not contributing and thus still using services got stopped.

Yes, a utility company can do this. But its a defined process and regulated by the state! I'm sure its much more paperwork to shut off 100 homes in an HOA, and state notifications, etc vs just one home.

Quote:

We also denied access to clubhouse and pool too. Lawnmowing is our only requirement to provide.

Since those activities are not publicly regulated by the state, the same thought process does not apply. Not even close.

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