Common Area

The HOA PUD perimeter wall is in my back yard. It was there when I built a custom house on an empty lot. An unknown vehicle, from the street, hit my portion of this wall, causing a large hole. Although this wall is commonly considered a 'common area', my HOA refuses to accept responsibility for this damage; instead it told me to discuss it with the city (the wall is actually on private property) and repair it at my own cost as the city disclaims any responsibility. This HOA's position is against California law. What recourse do I have now?

I assume the schnook that hit the wall did not have auto insurance? Like Tim said, contact your homeowners insurance, let them duke it out with the HOA. That's what you pay those nice premiums for.

Like the others... Call your homeowner's insurance on this one to handle. They may go to the HOA's insurance. Again read your documents on who may be responsible.

Remember when you has the HOA to pay for something, it really means your asking your entire membership to pay for that expense. Which should be voted on and approved by the board it is every member's responsibility. If it turns out to be on common property and the HOA built it, then I say HOA responsible. If it is on common property and the HOA gave permissions for it to be built to whomever lived there, then I say it's your responsibility.

The HOA's insurance deductible can be very high. Plus putting a claim on it can make the HOA's insurance go up or even risk losing it. Which then effects everyone in possible higher dues. So the HOA may not put it as an insurance claim but have someone come out to evaluate the expense of repairs. If cheaper than the deductible, then they may pay a contractor to do the repairs instead. Just so you understand why the HOA's insurance may not play a role in the repairs IF the HOA decides it's responsible. Plus you have no real control on how the HOA decides to fix it if they own and pay the contractor. It's their wall and they can decide how/what to do with it.

Most HOA walls are on private property, the association typically has a wall easement that allowed them to erect the wall on your property. Does your lot plat show that the wall is on an easement granted to the association? Most associations do take responsibility for the exterior walls since having a uniform wall makes the development look better. In the absence of anything in your governing docs specifying that the association should maintain the wall, it would be up to the board to decide if they want to do that or not. In our case, the wall has been hit 3 times in 20 years, in each case the association has taken the responsibility for the repair, which has always been paid for by the driver's or association's insurance.

I would not expect the local municipality to take any responsibility.

You mention the association's actions contravene CA state law, can you be more specific?

Since the governing docs are silent on the wall, there doesn't seem to be any requirement that you maintain it either, or keep the same form. You could try putting up a wooden fence and see if that doesn't get the neighbors howling for the association to fix it.

Please look at the Davis-Stirling Act of the California Civil Code. It clearly defines the role of the homeowner and the HOA with respect to responsibility of the common areas.

John,
This just came up in our latest board meeting. We a the same perimeter fences around our very large community with 1500 homes. Part of a wall has been damaged and the board got a few quotes that were very high to repair this minor damage.

My personal thought that I raised and has still not been answered is what makes that wall any different than every other fence in the rest of the community? If the fence or wall needs to be repaired the HO needs to work it out with the bordering neighbor. They split it accordingly. Why is the HOA solely responsible it this case? This is a Hugh liability to any HOA and reserves should be raised to cover these minor repairs and it's eventual replacement.

I think this advice is excellent. If the wall is in the reserve study or operating budget, then JohnL's legal case for the HOA to pay for the repair seems to me to be much stronger.

Or arrange for other sections of the wall to go away.

No attorney is willing to handle my case. It cost me $2500 to fix the large hole in the common perimeter wall. The typical legal retaining fee starts at $5000.

To give you a flavor of the HOA Board that I am dealing with, let me tell you the story of another HOA member that lives on my same street. His
house is a poorly done reproduction of a ancient Greek private home of the 5th century BC, painted in garish colors. It is totally inappropriate with the other houses around his. He was permitted his design by my HOA as he is a Pulitzer Prize winner. What rubbish!!!

Typically "Common areas" are property owned by the association, which is not true for the property where the wall is. Being "generally considered a 'common area'" doesn't necessarily mean it legally is one. Actual ownership of the wall is a good question, since it assumedly sits on an easement granted to the association. An easement means another party has the right to use your property for a specified purpose (such as building and maintaining a wall), but probably doesn't require the grantee to do so. You should find your plat and see if there is any more detail on the easement to find out if there is some responsibility placed on the association there.

Even though it doesn't make sense to hire an attorney to pursue this in court, it might still be worth paying for a 60 minute consultation to get an opinion. Assuming the attorney agrees you have a case, you could sue in small claims court without a lawyer.