Is the HOA responsible for owner negligence?

Are you a condo or separate homes? Need to know the details of ownership. A condo with shared roofs and a unit down below the HOA could be responsible for the prevention of damage to the floor unit. However, the inside of the unit not so much.

How is the HOA legally able to enter this property? The HOA does NOT own it. Unless the HOA is repairing it's common property like walls/roofs. Everything else is the owner or future owner.

Someone best explained it as this... Your unit is like a box. If you flip that box upside down, everything that falls out is the owner's responsibility. That is where homeowner's insurance picks up.

Now you don't like to hear this but it's just not much can do. We had a unit we foreclosed on. It had a water leak. We were able to turn off the water but after than nothing we could do. We do not own the home and had no legal rights to enter. It stayed this way for a year till a new owner was able to purchase it. Them the breaks...

I agree with Pat that the experts should weigh in on this before the board makes any decisions. Every community is different due to governing docs, state laws, and insurance coverage.

One mistake many boards make is assuming that any damage which originates in the common elements (eg. the roof) is the responsibility of the association. This is not the case.

Based on my experience, the mold and other damage to the upstairs unit would be considered maintenance and not covered by the HOA's insurance. It would be an insurable event if the roof had been torn away in a storm and the interior mold and other damage resulted directly from that. This can happen in southern states where mold can grow almost overnight. In the Great Frozen North, mold is nearly always a maintenance issue.

Our insurance agent also said that negligence was not considered when paying out a claim. It was strictly "who is responsible for what" according to the governing docs and the details of the insurance policies.

(Disclaimers: Our governing docs state that owners are responsible for maintaining the interior of their units. My COA carries all-included insurance, which does cover interior repairs as described by Melissa **but only when there is an insurable event**. The event as described by the OP would not be an insurable event. If we were dealing with a similar situation in my community, the fact that the unit owner failed to maintain her interior due to age is unfortunate, but that failure does not transfer the responsibility to someone else.)

As with all of this stuff, your mileage may vary.

Owner pays dry wall in for my association. Check with your attorney before you do or even say anything.

Thank you. Yes our management guy said we can pay a few hundred dollars to have a consultation with an HOA attorney. It sounds like it might be worth it

Thanks for the reply. I took a look at our CCR and I found this language earlier. Not sure if it applies the same as yours but there is a degree of responsibility to for maintaining

"Article VII Power and Duties of Board of Governors:

"The Board, for the benefit of and as the agents of the owners, shall acquire, and shall pay for out of the maintenance fund hereinafter provided for, the following:.....

(c) Exterior maintenance (not including maintenance of glass in windows and doors of apartments), gardening, care....and full maintenance of the common area
....

(e) Maintenance and repair of any particular condominium of a type normally the sole responsibility of the owner of the particular condominium, if such maintenance or repair is reasonably necessary in the discretion of the Board to protect the interests of owners generally and if the owner of the particular condominium has failed or refused to perform such maintenance or repair; provided, however, at that the Board shall levy a special assessment against the particular condominium for repayment of the cost of such maintenance or repair."

Article IX Owners' Obligations to Repair:

"Except for these portions which the Board is required to maintain and repair hereunder, each owner shall, at his sole cost and expense, maintain and repair his condominium, keeping the same in good condition."

Hi thanks for the response. I only know what i know from the management guy dealing with the deceased's grandson. They had said that he hadn't gone up there in a long time, not sure the exact wording but based on the extent of the damage and mold, it would've taken years to accumulate. The deceased had the grandson look in on them, but apparently they were unaware of the damage until they cleared out his things. They want to rent the place out and they have to fix it up beforehand.

You said the owner died. Was the unit sold or were there 2 owners in the unit? What I'm asking is was there a buyer involved. In my HOA the owner is responsible from the drywall in, so we would not pay for anything.

Why would the HOA spend 10K on something they do not own? It's not like you are going to get the 10K back for fixing it up. The owner is the beneficiary of this work NOT the HOA.

Yes, the HOA is responsible for roofs if that is how it is written. Whatever is below the roofs or inside the drywall isn't. Your HOA does NOT own the unit and does not benefit.

Some may argue that an unoccupied mold filled unit doesn't do the HOA/condo any favors. However, there is also the facts that the HOA doesn't own nor control the insides of people's homes unless it effects the exterior.

Don't like the situation but also would never put the HOA in the responsible role of fixing up a unit either.

If possible, consult with a lawyer. There is a chance the HOA will have to pay for all of the repairs, but this situation is complicated. With such a high price tag, it is worth it to speak with a legal professional.

Nathan

Yes do seek legal counsel. That said, typically in such a situation it will end up being a battle of insurance companies. The HOA's insurance company and the unit owners insurance company as to who pays for what. This assumes both have insurance.

Thanks for the advice, Cathy! I read through the CCR's already and it is in legal-ese so I can only guess what it means. We will need an expert to tell us how to interpret it.

Thanks for the advice!

And the "management guy" is likely to be wrong. As I'd noted earlier, many boards make the mistake of believing that any damage originating in the common elements is the association's responsibility. Not true. The details of individual situations will determine who has to pay for what.

I agree.

Good advice.

Get your HOA lawyer on phone for a consult. Are you able to file a claim with the deceased owners insurance company? perhaps file a claim against the estate in probate court?

You don't need a lawyer, you need the opinion of the insurance . They wrote the master policy based on your governing documents through their underwriters.

So I should talk to the master insurance policy, explain the situation and ask who is liable here and who's (if anyone's) insurance will cover this? Ok, my assumption was both insurances would say this damage isn't covered, but i haven't talked to them, we'd all left that mostly to the management company.

Ok, so if the master insurer responds to us that they reject a claim to pay for water damage to this unit as the master policy doesn't cover it, whether it's negligence or they just don't cover internal water damage from a leaky roof, then what? The unit's owner would still want us to pay for the repairs. We still need our lawyer, don't we?

Really? HOA being responsible for the roof makes sense to me. HOA being responsible for water damage because the roof has a leak makes sense to me as well as long as it is within reason and reported in a timely manner, so it's a bit surprising to hear someone say it's definitively not the HOA's duty. Well, i'm curious to talk to that lawyer and if i have time tomorrow i guess i'll see if I can find our HOA master policy and give them a call.

Thanks for the advice. I have looked through our CCR and from what i can tell there just isn't a lot in there and it doesn't really tell me exactly who should pay for what. It's surprisingly short and it doesn't specify like "a unit includes drywall" or "it doesn't include drywall."

There are some parts that to my untrained legal mind seem like they could be relevant, but i don't know about the wording and what it means for this situation. For example it says clearly that board maintenance funds will be used to maintain the exterior and to make "structural repairs, except where the damage or difficulty results from fault or neglect of a particular owner or unit." Another part says the board can use maintenance funds to repair or do maintenance on any particular owner's condo but that the owner will pay a special assessment. There's a very short part about each owner keeping their condo in good condition for everything other than the Board's responsibility. But in this particular case, what does that mean? I feel like only a lawyer can really tell us in California what usually happens here.

That other documents would most likely be called your Rules and Regulations. What you are looking for has to be in the CCRs, not the R and R.
If it was intended to be covered, it would be spelled out in that documents. I have seen CCRs written where the HOA covers everything, and I do mean everything, even putting too much toilet paper in one's toilet subject to the association's $25,000 deductible.

OK, that makes it harder.

Our Declaration has an article that contains definitions, including ones for "common area", "limited common area", and "unit". The section on unit lists all components of a unit, including drywall, ceilings, flooring, exterior doors, windows, and utility lines inside common walls that only serve that unit.

There is also another article that describes who is responsible for what, and includes a section listing all of a unit owner's responsibilities, including "to maintain, repair, and replace all components of the unit." The article also states that the association is responsible for "maintaining, repairing, and replacing" all portions of the "common areas" as defined by the previous article.

If your Declaration/CC&Rs aren't that detailed, then another place you may be able to tease this out is by seeing exactly what your HOA is insuring and exactly what the unit owner was insuring (on the theory that people only insure the items that they are responsible for). BUT... you have to know what kind of insurance your HOA carries. If it's "all included", then the HOA may cover repairs to an individual unit but **only if the damage was due to an insurable event** such as a storm. If you're carrying bare-bones insurance, where the HOA only insures common areas, then your HOA's policy should give you some reasonable guidance.

Having your lawyer give an opinion is best, though, since the new owner may want to fight this in court. And with the death of the previous owner, and who knows what legal limbo the unit is in, this situation is murkier than it would be otherwise. Top it all off with vague CC&Rs, and you have the sort of situation that needs professional help.

Oh i was also thinking that we need to add in some language to the CCR that makes it clear that the owners have a responsibility to inform us of an issue that requires maintenance and if they do not do so in a timely manner, they may have a special assessment levied against them.

Hello I just wanted to update this thread after meeting with our HOA lawyer today. People here were correct in believing the Board likely isn't liable for things outside of the drywall. Our lawyer said it is like a box and the Board is responsible for maintaining that box which would include the drywall. However, everything inside of that is the owner's responsibility including tubs and counters and cabinets.

He said it could be possible that the Board could be liable for damage to the other parts inside the box if it could be proven the Board was negligent and ignored requests by the owner to fix the roof. That would have been way before my time and we have no record of it so the lawyer said we can't operate on what we don't know. I asked if the Board had some responsibility to do regular roof inspections and he said there is sort of a 3 yr plan that should be kept up regularly but that it doesn't require someone actually finding every hole that could exist in a roof

There was discussion about whether the owner would sue because this process has taken so long (approaching a year) and they have not been able to rent out the place. Our lawyer said they could have a point if we haven't been trying to fix their problems. But every request we've followed up with, it just kept ballooning into a bigger and more expensive project that eventually involved replacing the entire roof. He said that while the Board is working on repairs, it is not the Board's responsibility to accommodate the owner and pay for their lodging or reimburse their lost rent.

The lawyer suggested if we really want to avoid litigation we could give them more money but even if they wanted to sue, insurance would kick in if we were found negligent which might raise our rates but that's it. I'm leaning towards saying our original offer of ~$10K for drywall repair is our best and final offer. If they want to litigate it I actually think we have a pretty good case that we shouldn't even pay that much as if the deceased owner had informed the Board of the problem years ago, it wouldn't even be close to $10K as the damage would have been far less extensive.

Thanks everyone, and i hope this situation informs people who deal with something similar.