Deck Damage

I am a Board Member of a 10 unit condo in Washington. We have strict rules about keeping water off our decks because the building is 26 years old enough and constructed before the new codes requiring the decks to slope wasn't in effect. This is something that we are planning on taking care of by tiling correctly, but in the near future as an assessment - not now. This is for maintenance not because we're saying the building wasn't constructed right. Someone just moved in (before our big storm) and when the storm hit, water leaked from his deck to the unit's deck below his ruining part of the deck and wall. We contacted our insurance company and it wasn't covered. I feel bad for him because he just moved in and has about $1,000 worth of damages that he has to take care of for his place and the unit below him. To make it short, he's not paying his dues and has talked the person in the unit below him not to as well. We talked with an attorney, the insurance agent, an adjuster, looked over our Declarations, Rules and Regs thoroughly, and everyone says the Associaton is not at fault. The 2 units involved insist that we are and must pay all damages including buying tile for his and having someone lay it for him. We're very small and try to keep our dues down, so hiring a lawyer will be hard for us. Does anyone have any advice on how to convince these people that we're not responsible? Plus, the Association includes them, so they would have an assessment too! Altho, I have a feeling they will refuse to pay that also since they're not paying their dues now. I know we can put a lien on their home, but I don't want it to come to that. Any help you can give me would be greatly appreciated. Thanks!
Judie

Judie:

Question, you say your HOA was planning on taking care of this with an Assessment in a couple of years. If it is the owners responsibility then why? Why would the HOA do that, or is the deck really the HOA's responsibility? As Gloria said if the deck is the unit owner's responsibility then it is their problem. Don't feel bad placing a lien on their home. Many people think that they can get back at their HOA by not paying dues when they are involved in a squabble, however, they don't understand or don't care about the ramifications. Treat them like you would treat any deliquent person.

NOT paying your dues to a HOA is NOT an option. Matter of fact, it makes you lose any kind of "ground" with the HOA even if your right. A homeowner doesn't only open themselves up to liens/foreclosure for not paying dues but they could lose their voting rights as well.

My advice, wait for them to sue the HOA. It's MUCH cheaper for the HOA to defend itself in a countersuit than it is to file one themselves. Plus 90% of lawsuit threats are alot of "Hot air". The HOA may want to get it's paperwork together to defend the fact it's not responsible. I would first send them a copy of the reference of responsibility first before they do pursue legal action.

Other posters know my next sentance... Suing your HOA is suing yourself and your neighbors. So you may want to remind these owner's what they could be facing. The HOA may not have a choice but to hire a lawyer. The money for the lawyer comes out of the HOA budget. The same budget that the owner's dues supply.

I would strongly advice them to review the HOA's documents and contact their insurance company if they have one. I know the HOA's insurance won't cover this damage. It's liability only and this doesn't fall under any of it's coverage options.

GloriaM - I have lived in two condo associations and both are specific that the unit owner is responsible to sweep, and shovel snow off of the deck but the long-term maintenance and replacement of the deck is the cost of the Condo Assoc. In both Associations I've lived in, the deck , as well as landings/stoops are considered a Limited Common Element, appurtunent to the unit for the sole use by the unit owner for ingress and egress.

Unless Judie's By-Laws or CC&R's (the two are different folks) define the decks as the responsibility of the unit owner, I firmly believe that common sense should tell the Association Board that decks should be maintained and replaced by a portion of the maintenance fees collected over time. In this way, all owners are accomplishing the same thing by collectively splitting the costs. IMPORTANTLY the Association is protected because it ensures proper maintenance over time, rather than leaving it up to the individual to properly maintain.

If your By-Laws or CC&R's define decks as the responsibility of the unit owner, how are you going to prevent this from happening again?

BradP,
In Judie first post, (Judie is a Board Member), she states that the Decks are something "they" have planned to take care of in the hear future. This defect in the decks was cause for the water damage, owners are responsible at the present time to keep the decks free of standing water. It is certainly cause for discusion about liability. By correcting the problem, the board stands in better light to sit down with disgruntled owners and get them back on track and resume paying fees. The problem is not going away, it has to be corrected, the 10 owners will have to pay the bill one way or the other. To have 20% of your association not paying dues is unacceptable. To expect the problem to fix it's self is unacceptable. It does appear that the board was somewhat involved with the problem prior to this incident. It's all the owners money involved, fix the problem, settle with the two owners, accept responsibility for past board failures, have a beer together and get it behind you.

Brap,
Can't find fault with your logic. The condition as described could be exactly what is real. However, it probably isn't and without viewing the structures I would not want to take action or form conclusions. Believe we are talking about condos and as you know there are different types of property that make up the Real Property. With ten members I concur with the poster it probably should be common property. As far as lawyers advice, if I understand the lawyer was retained to give a legal opinion about the damage that was done, how and why, who was involved and who is responsibile for the property. Unless he is taking something out of the CC&R's that justifies his opinion, he is giving an educated guess about a specific question that probably has not come up before. If it has and a case was established, follow that opinion, if not, weigh all the facts as you know them, and make a decision. I would not make a claim against anyone based on what the lawyer thinks, he may influence my judgement and I may abide by his explanation of a law. Bur here, if any suing is going to be done, I would sue on the fact they are not paying their fees and let them sue you for whatever else. By the time you get that done, everyone is mad, including the judge, he will blame both parties for not being able to work this out. Am I right? Certainly not, just an opinion.

JudieA - You may have strict rules on standing water on decks but it's unrealistic IMHO to expect that a flawed construction should be monitored and solved constantly by the unit owners. When were these rules put into effect? What do your By-Laws state regarding the responsibilities of unit owners and responsibility of the Association to maintain, and replace.