HOA as Plaintiff

You posted this twice, so I'll respond here.

You may want to contact your local small claims court office to be sure, but if it's a relatively simple dispute, I don't see any reason why a board officer couldn't do it.

Whoever does this (president, vice-president, etc.) be sure he or she is prepared and educated on the court procedures. The court usually has a brochure or something you can use to help prepare. Basically, you need to gather together your witnesses and documents supporting your case and remember the other side will be able to review your documents as well as present their own, as well as question your witnesses, so even if you aren't using your association attorney, it wouldn't hurt to have a sit down with him or her to review everything to make sure you aren't missing something.

SheliaH,
Don't know how the question got posted twice. Thanks for the reply and advice.

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HOA intends to sue in small claims court to recover its cost for repairing water damaged ceiling and walls of a first floor unit. The unit was unoccupied so the damage not discovered until two or three weeks after the fact. A catastrophic water discharge from “above” appears to have been a one-time event as plumber found no leaks in either the damaged lower unit or the one immediately above. The upper unit has no water damage and its owner disavows any responsibility. The HOA has no way of proving the exact cause of the water discharge except that it came from “above”. Any thoughts on likelihood of prevailing in the suit against the owner of the upper unit.
Am a computer novice so again apologize for the double post

A quote from attorney Abraham Lincoln:

"A man who represents himself in court has a fool for a client."

PitA, behave!!! (Hee-hee!)

Back to Roger’s situation –I think you’re going to have to do a lot more in proving the owner was at fault – you seem to assume he/she is responsible because the water came “from above” and that unit (with no water damage) is directly over the one that did suffer the damage. Some questions that come to my mind (because you haven’t provided details):

Who’s responsible for what regarding plumbing – the association or the homeowner? Has anyone checked the association insurance policy?

Why wasn’t this referred to the association insurance?

Has the owner ever complained to the association about plumbing issues? What was the outcome? How about plumbing complaints from other owners – especially if their units are close to the damaged one (perhaps a unit next door to the upper unit is the real culprit)

Did the PLUMBER find the source of the water and was it in this unit (e.g. a busted water heater)?

How long has this unit sat empty?

Did the owner have the water shut off? How do you know?

Is there any history of plumbing repairs involving that unit? What about the surrounding ones?

And so on.

There’s no way anyone can guarantee how this will end in court and as I said earlier, you need to have your case together before you get there. From what you’ve said, I’m not sure you’d win. I understand wanting to save money in legal expenses and attorney’s fees and you don’t need one in small claims court, but this can get complicated very quickly. Sometimes, it’s best to bite the bullet and get an attorney (preferably one with experience in this area).

Thanks to all. This was not a “leak”. It was a one-time catastrophic discharge of water. Master bedroom carpet in lower unit was saturated. Water came over the sloes of my shoes when walked on. Rugs in bath area wringing wet. Insulation between floors was wet. Plumber found no leaks. His report says likely “an accidental spill over of bathroom fixture”. Lower unit unoccupied for the month prior to the discovery of damage (includes mold). We know there was no damage at least two weeks prior to the discovery. Upper unit unoccupied until about two weeks prior to damage discovery. Owner was in residence for those two weeks. HOA insurance won’t cover because the damage is less than the deductible. No indication from owner of the upper unit that his water heater failed or washer hose blower kids overflowed the bath tube. Denies all responsibility.

Generallly small claims court is used to avoid large legal fees for instances which do not have large sums of money involved. If someone is suing over a small amount such as $300 to fix a vehicle which was not properly fixed. Then they will turn to small claims court because an attorney might cost $3,000 to collect $300. Here is a website with the following comment:

http://www.nolo.com/legal-encyclopedia/small-claims-court-faq.html#answer-1742633

Can I bring a lawyer to small claims court?

In a handful of states, including California, Michigan, and Nebraska, you must appear in small claims court on your own. In most states, however, you can be represented by a lawyer if you like. But even where it's allowed, hiring a lawyer is rarely cost efficient. Most lawyers charge too much compared to the relatively modest amounts of money involved in small claims disputes. Happily, several studies show that people who represent themselves in small claims cases usually do just as well as those who have a lawyer.

The question ... is the issue small enough where a Board member can represent for a small amount of $ vs hiring an attorney for many $$$?

I, as CAM, have represented both 718 and 720 associations in the past, before a small claims court and in arbitration, without objection. This saved the defendant significant legal costs since, so far, I have always prevailed.

No, depending on the state, lawyers are not permitted. There are some exemptions to that, when the lawyer is the individual being sued, and when the lawyer is an employee or member of the board of the company being sued and the practice of law is not the job desrcription of that individual.

? WHY ?

It is MUCH more fun being a PITA

The key word being MAY