Damage to Shared Common Area Wall

NpB (Arizona)
Posts: 605

Posted:

Some units in our HOA have a backyard wall that is half a private wall and half a common wall--meaning that part of the wall is in the owner's backyard, and is the responsibility of the individual owner and the other side of the wall is HOA common property. The wall in question is very long and some parts of the common area wall have water/irrigation damage originating from the backyard of the owner. The damage to the common area wall size is haphazard and consistent with the backyards that have excessive foliage that need lots of water. Common sense would indicate that excessive water from private owners backyards is causing damage to some sections of the common area wall.

Our CC&Rs indicate that owners are responsible for willful or neglectful damage to common area property. The side of the wall that abuts common property that is haphazardly damaged is considered common property and was painted 3 years ago using HOA funds. I don't think it's fair for all owners to pay for repairs to parts of this wall due to excessive watering by some owners.

Owners in our HOA have a historically not accepted decisions against them very well psychologically. I think it is best to come fully prepared with CC&R documentation and proof that their excessive watering is the cause.

How would one find an expert with credentials and many years of experience in masonry to provide written documentation that the cause of damage to the common property side of the wall is due to the owner excessive watering?

Would filing an insurance claim yield an expert adjuster or investigator to document that the cause is owner excessively watering? If the expert adjuster or investigator determines this, then I assume the insurance company would deny the claim and not pay to repair.

If the HOA pays for the repair to the common area of the wall damaged by excessive irrigation and does a chargeback to the owner and the owner does not pay, can the HOA place a lien on the owner's unit for non-payment?

Have any of your been through a similar situation in your HOA?

I am in Arizona. This is a planned community, not a condo community where there are limited common elements.

TimB4 (Tennessee)
Posts: 21,059

Posted:

If the HOA painted the wall, they should be responsible the maintenance, repair and replacement of the paint.

Paint on brick/stone typically has a life span of three to five years (this life span is also for paint on cinder block)

I grew up in Phoenix. 3 years would be a reasonable expectation in that environment.

KerryL1 (California)
Posts: 14,550

Posted:

Just curious, NpB. Does anyone see this common-area side of the wall? Is there any actual structural damage to that side of the wall? Or is it mainly staining, discoloration, etc.

Not sure what you mean about owners not accepting fines very well "psychologically." sound like you really know each one's inner selves?

Can't recall. Are you on the Board?

NpB (Arizona)
Posts: 605

Posted:

Yes, I am on Board. There is definitely stucco damage. The problem is much more extensive than peeling paint. The actual stucco is coming off. This wall is visible to the general public.

In the past, Boards did everything to not "rock the boat" and to promote a "pseudo harmony." Violations overlooked, not enforced, etc., in order not to make anyone unhappy. Homeowners have thus developed an "entitlement" mentality to where they get upset if you cite them for overnight street parking, because it was overlooked in the past.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I agree with your take on this. It may be hard to prove that the damage is due to watering, and that such proof would be needed to pass on the repair costs to the homeowner.

One thing to look at: is a particular section of the water (that backs to one owner's property) showing more damage than other sections? That would suggest (although not prove) that the homeowner has been doing something to cause the damage.

The insurers may be your friends here, since they won't want to pay unless it's justified. Otherwise hiring a structural engineer type to evaluate the entire wall may be helpful. Water damage should look different from other wear and tear. If you're looking at water damage in a single area, then that may be enough proof that one owner is responsible.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By CathyA3 on 03/23/2022 5:05 AM
I agree with your take on this. It may be hard to prove that the damage is due to watering, and that such proof would be needed to pass on the repair costs to the homeowner.

One thing to look at: is a particular section of the water (that backs to one owner's property) showing more damage than other sections? That would suggest (although not prove) that the homeowner has been doing something to cause the damage.

The insurers may be your friends here, since they won't want to pay unless it's justified. Otherwise hiring a structural engineer type to evaluate the entire wall may be helpful. Water damage should look different from other wear and tear. If you're looking at water damage in a single area, then that may be enough proof that one owner is responsible.

Argh: a particular section of the WALL...

NpB (Arizona)
Posts: 605

Posted:

Thank you for the suggestion of a structural engineer. Hadn't thought about profession.

Some owners may "protest" and not pay for the repair so that charge might be on the books for years.

AugustinD
Posts: 3,698

Posted:

Points I would make at any meeting of the Board where I was a director and facing this issue:

-- Forget about professionals guessing at the cause, and with the HOA paying a lot of money for these guesses.

-- Get estimates of the cost to repair the wall, section by section. If you post the cost here, then this might help guide the advice you get. (Instantly I had attorney fees competing against actual cost to just repair the darned wall.)

-- Check in with the insurer. Be ready for the insurer to deny any claim, for reasons explained below.

-- Recognize that the HOA might be said to be at some fault here. Why? Because it did not take action sooner to notify the owners that their actions were causing damage. I believe that, at times neighbor X unknowingly causing damage to neighbor Y's property may potentially not be responsible for the damage the first time it is discovered. If X properly notices Y of the damage, and the damage continues, then neighbor Y is more likely to have some or all responsibility to pay for the damage.

-- Keep in mind that there is no way of telling what a court would say here.

-- If push came to shove, I think the likelihood that the two sides' attorneys could argue a long time in court over who is at fault, costing everyone a fortune, is high.

-- Immediately put the owners whose watering and/or foliage has caused the stucco damage on notice to cease and desist. Have the HOA attorney write this letter. Inform the owners that they are violating the covenants.

-- At this point, I think the chances are high that all the HOA can do is warn and not fine.

-- Locate the section of the Declaration that authorizes the HOA to assess an individual owner for damage the individual owner has done to the common area.

-- Write notices to all owners who have caused this damage that they are being assessed X dollars for the damage they caused to the wall. Caution the owners that the HOA reserves the right to foreclose on the lien (assuming the HOA attorney agrees). Note that Az Planned Community statute section ARS 33-1807 seems relevant. That is, the latter says the HOA may not foreclose for fines, but the HOA may foreclose for assessments.

-- Invite the owner to a hearing pursuant to your HOA's hearing process.

-- Recognize that the responsibility for the damage arguably is shared between both the owner and the HOA.

-- Ask each owner to split the cost of repairing the wall with the HOA.

-- Why am I advising this? Because the attorney fees will quickly add up and exceed the cost of repairing the wall. Keep this out of court. If possible, do not even tarry over mediation. Have the attorney be brutally honest; behave like the bona fide advocate for the "best interests of the HOA" that he/she is supposed to be; and ask the owners to split the cost.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 03/23/2022 4:33 PM
I believe that, at times neighbor X unknowingly causing damage to neighbor Y's property may potentially not be responsible for the damage the first time it is discovered. If X properly notices Y of the damage, and the damage continues, then neighbor Y is more likely to have some or all responsibility to pay for the damage.

Wrong. Try again:

I believe that, at times neighbor Sam Waters unknowingly causing damage to neighbor Brown's property may potentially not be responsible for the damage the first time it is discovered. If Brown properly notices Sam Waters of the damage as soon as the damage happens, and the damage continues, then neighbor Sam Waters is more likely to have some or all responsibility to pay for the damage.

LetA (Nevada)
Posts: 2,679

Posted:

Augustin Nailed it. Having a similar instance here in our HOA home owner A plants Shrubs, grass etc in back yard, does not use any water stain preventive applications to the shared block wall. Neighbor
B's block wall is now white from calcium stands from water seepage. HOA sends C&D letter to neighbor A and a letter outlining their responsibility. Bill to clean the calcium stains off neighbor B's shared
wall is sent to neighbor A along with a follow up to ensure damage does not occur again.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By LetA on 03/23/2022 5:08 PM
Augustin Nailed it. Having a similar instance here in our HOA home owner A plants Shrubs, grass etc in back yard, does not use any water stain preventive applications to the shared block wall. Neighbor
B's block wall is now white from calcium stands from water seepage. HOA sends C&D letter to neighbor A and a letter outlining their responsibility. Bill to clean the calcium stains off neighbor B's shared
wall is sent to neighbor A along with a follow up to ensure damage does not occur again.

Axe-u-lee...

The white stains may be from efflorescence, which is the seepage of water and minerals throughout a porous material. Brick is particularly susceptible. Over time, if neglected, this can lead to structural damage. And efflorescence often results from more than one cause and not necessarily from the negligence of one person. (We dealt with efflorescence in our entrance walls, where the damage was causing primarily by rain.)

If this is a shared or common area wall, the solution is probably to seal the entire wall to keep the water out. Owner A would not be solely responsible for water damage to the wall, unless you get no rain at all in your area and the wall itself has no construction defects. Owner A also should not be entirely responsible for wall maintenance since the whole thing should be sealed, and owner B (plus the HOA) should have some responsibility.

MaxB4
Posts: 3,513

Posted:

Maybe the real responsible thing for the developer to have done is require a "drip" system in the architectural guidelines.

NpB (Arizona)
Posts: 605

Posted:

Thank you all for your comments. If our HOA were to hire a licensed structural engineer to conduct an evaluation of the wall and the engineer's written report were to conclude that damage Is strictly caused by the neighbor's excessive irrigation, would the Board be mandated by any business judgement rule to "charge back" the owner? I can envision a case where for political reasons and because our HOA happens to be very well funded, I may be in the minority and there may be enough votes to have the HOA cover the expense of repair and not "charge back" the individual owner(s). Are there any consequences (e.g. setting a precedent) for letting owners off the hook for their behavior?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By NpB on 03/24/2022 10:48 PM
Thank you all for your comments. If our HOA were to hire a licensed structural engineer to conduct an evaluation of the wall and the engineer's written report were to conclude that damage Is strictly caused by the neighbor's excessive irrigation, would the Board be mandated by any business judgement rule to "charge back" the owner?

Arizona appears to use the business judgment rule. Here from the laypeople's cheap seats, abetted by a google search, this rule says:

Under [the business judgment rule], a court will uphold the decisions of a director as long as they are made (1) in good faith, (2) with the care that a reasonably prudent person would use, and (3) with the reasonable belief that the director is acting in the best interests of the corporation.

Director Roark says he feels that the HOA should have seen this damage in its early stages two years ago, so the HOA has a lot of responsibility for the damage.

Director Francon, while not a pushover, says she tends to agree.

Director Toohey says, "It's rarely one thing that causes damage. Was the watering the main damage? Maybe, but then again, why didn't the HOA restrict the foliage next to the common wall, even if it was not right up against the HOA's side of the wall?"

I say no, the business judgment rule does not mandate the HOA Board to vote to 'charge back' the owner.

CathyA3 (Ohio)
Posts: 6,299

Posted:

What do the CC&Rs say about responsibility for maintaining this wall? (Apologies if I missed it.)

I doubt that "business judgement" justifies violating CC&Rs. So if yours say that the HOA is responsible for maintaining the wall, then you'd have a hard time passing on maintenance costs unless there was some extraordinary damage and not just wear and tear (eg the homeowner rammed the wall with a riding mower or something). In other words, if it's normal wear and tear, then it's a maintenance issue that belongs with the HOA - if there were an accident or deliberate damage, then it may be an insurable event and responsibility may pass go the homeowner.

But a lot of this depends on the details about the damage and what your CC&Rs and your HOA insurance policy have to say about it.

NpB (Arizona)
Posts: 605

Posted:

The CCR's state that if an owner causes damage to the common areas, then the owner shall pay for such damage and for such maintenance, repairs, or replacements as may be determined by the Board.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I understand about damaging common area - I think that's a pretty typical provision in the governing docs.

The trouble I see is that if the damage to the wall is caused by watering plants, for example, I don't know where you draw the line between normal wear-and-tear vs. damage that is unusual in some ways. People ought to be able to water their plants (unless there are some other laws or rules regulating water usage). If this sort of damage is a concern, then the HOA should have rules about the location of plants - then if the homeowner violates the rules, it would be appropriate to pass repair costs to them.

But if the homeowner has not violated any HOA rules and has not done unusual damage (eg. ramming the wall with a lawn mower), you may have a hard time passing costs on to them - because the damage results from normal, acceptable use of the common areas.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Following up on my last post, if you're dealing with water damage, then you should probably should have some sort of reasonable rules about what kinds of plants are acceptable and how far they must be from the walls. Even without current damage, you're in an arid climate and the drought isn't getting any better - it would make sense to be pro-active about responsible usage of water and land before the rules are imposed on you from on high (the state legislature and/or Mother Nature).

NpB (Arizona)
Posts: 605

Posted:

Certain sections of the wall are pristine and certain sections of the wall have considerable decay that is directly correlated with the amount of foliage and presumably watering of the neighbors. The sections of the wall that are pristine have neighbors behind it with arid landscaping.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By NpB on 03/29/2022 11:13 AM
Certain sections of the wall are pristine and certain sections of the wall have considerable decay that is directly correlated with the amount of foliage and presumably watering of the neighbors. The sections of the wall that are pristine have neighbors behind it with arid landscaping.

I think you've correctly identified the cause of the issue. There are a couple problems, though. One, without any rules or regs about types and locations of landscaping, the owners who are watering a lot aren't doing anything wrong. And two, if you do pass on repair costs and the owners chose to fight it in court, I'm not sure how solid your proof is that they are totally responsible (that's a question for a lawyer).

I also think that the damage is justification for enacting rules about the landscaping - it makes the rules reasonable where they might not be in a different state or community. But I recommend first checking your state laws about rules that are more restrictive than covenants and/or state laws. You don't want to wind up with legal battles that are more costly than wall repairs.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

NbP

Clarify somethings for me:

1. Is the association responsible for maintaining the exterior of the wall?
2. Is an owner responsible for maintaining the interior of the wall that abuts their property? If yes, how does the association enforce this?
3. Is the issue the fact that some owners overspray/water the wall beyond the edge of their property thus causing damage to it? If yes, could an owner "go after" a neighbor that does this?

Thanks.

NpB (Arizona)
Posts: 605

Posted:

JohnC46:

1) Yes.
2) Yes. Association only enforces if property is in unsafe unsanitary condition.
3) Yes. It appears that some owners irrigation issues or overwatering is causing damage to the common wall. A structural engineer could confirm or deny this. Regarding two owners of a shared wall, HOA CC&Rs state that is solely a neighbor to neighbor issue and that each party is jointly and equally responsible for rebuilding or repair.

NpB (Arizona)
Posts: 605

Posted:

The CCRs state the owner shall pay for damage to the common areas.

Since "shall" is defined as "used in laws, regulations, or directives to express what is mandatory" according to the Merriam-Webster dictionary, then the HOA is obligated to charge back the cost of repair to the individual owner's correct?

Is there any consequence to the HOA Board if directors decide not to charge back the cost of repair to the owner?

Assuming an expert determines the cause is neighbor overwatering, since the HOA can't mandate what owners plant in individual yards, if the Board decides not to charge back the repair to the offending owners, all owners will end up footing the bill for a few irresponsible owners every 3 years without a change in behavior by individual offending owners.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By NpB on 04/19/2022 9:43 PM
The CCRs state the owner shall pay for damage to the common areas.

Since "shall" is defined as "used in laws, regulations, or directives to express what is mandatory" according to the Merriam-Webster dictionary, then the HOA is obligated to charge back the cost of repair to the individual owner's correct?

Is there any consequence to the HOA Board if directors decide not to charge back the cost of repair to the owner?

Assuming an expert determines the cause is neighbor overwatering, since the HOA can't mandate what owners plant in individual yards, if the Board decides not to charge back the repair to the offending owners, all owners will end up footing the bill for a few irresponsible owners every 3 years without a change in behavior by individual offending owners.

Are you stating that the conduct of a few owners is willful and/or negligent?

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By MaxB4 on 04/19/2022 9:51 PM

Posted By NpB on 04/19/2022 9:43 PM
The CCRs state the owner shall pay for damage to the common areas.

Since "shall" is defined as "used in laws, regulations, or directives to express what is mandatory" according to the Merriam-Webster dictionary, then the HOA is obligated to charge back the cost of repair to the individual owner's correct?

Is there any consequence to the HOA Board if directors decide not to charge back the cost of repair to the owner?

Assuming an expert determines the cause is neighbor overwatering, since the HOA can't mandate what owners plant in individual yards, if the Board decides not to charge back the repair to the offending owners, all owners will end up footing the bill for a few irresponsible owners every 3 years without a change in behavior by individual offending owners.

Are you stating that the conduct of a few owners is willful and/or negligent?

Negligent.

NpB (Arizona)
Posts: 605

Posted:

If an expert determines the cause is the neighbor's over-watering then that would be considered negligent and according to the CC&Rs, they are required to pay for damage to common wall. Same as the guest of an owner being caught on camera spraying graffiti on the wall of a common area.

However for some sociological or psychological reason, Boards have a more difficult time "charging back" the cost of wall damage to the owner vs the cost of graffiti removal to the owner.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By NpB on 04/20/2022 1:24 PM

However for some sociological or psychological reason, Boards have a more difficult time "charging back" the cost of wall damage to the owner vs the cost of graffiti removal to the owner.

If the above is an anecdotal observation, then I think the psycho-social reason may be that the "cause" of the wall damage, and the association's possible complicity in letting it go on such that repairs become larger over time, is less traceable to an owner or tenant than the graffiti art. The courts spend a lot of time determining "causation," don't they? The analysis is extensive and absolutely at times results in a breakdown of how much each of the parties to a lawsuit may pay.

(Obviously I am lobbying for my own position: Consider splitting the cost of the repairs between the HOA and the owners involved.)

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By AugustinD on 04/20/2022 2:42 PM

Posted By NpB on 04/20/2022 1:24 PM

However for some sociological or psychological reason, Boards have a more difficult time "charging back" the cost of wall damage to the owner vs the cost of graffiti removal to the owner.

If the above is an anecdotal observation, then I think the psycho-social reason may be that the "cause" of the wall damage, and the association's possible complicity in letting it go on such that repairs become larger over time, is less traceable to an owner or tenant than the graffiti art. The courts spend a lot of time determining "causation," don't they? The analysis is extensive and absolutely at times results in a breakdown of how much each of the parties to a lawsuit may pay.

(Obviously I am lobbying for my own position: Consider splitting the cost of the repairs between the HOA and the owners involved.)

I don't mean to sound like a jerk, but why not place a lien for the amount of the damages against the owner that caused the damage.? It is not fair to the other owners to bear the cost
from the negligence of one owner.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By LetA on 04/20/2022 4:59 PM

I don't mean to sound like a jerk, but why not place a lien for the amount of the damages against the owner that caused the damage.? It is not fair to the other owners to bear the cost
from the negligence of one owner.

I do not think the OP has reached the point of making a demand (for money) upon the alleged perps just yet.

Certainly a HOA will ask for payment before it proceeds to recording a lien. (And for many HOAs/COAs, and as a matter of law, the "lien" happens the instant an owner is billed, regardless of whether anything is recorded with the county clerk.)

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 04/20/2022 2:42 PM

Posted By NpB on 04/20/2022 1:24 PM

However for some sociological or psychological reason, Boards have a more difficult time "charging back" the cost of wall damage to the owner vs the cost of graffiti removal to the owner.

If the above is an anecdotal observation, then I think the psycho-social reason may be that the "cause" of the wall damage, and the association's possible complicity in letting it go on such that repairs become larger over time, is less traceable to an owner or tenant than the graffiti art. The courts spend a lot of time determining "causation," don't they? The analysis is extensive and absolutely at times results in a breakdown of how much each of the parties to a lawsuit may pay.

(Obviously I am lobbying for my own position: Consider splitting the cost of the repairs between the HOA and the owners involved.)

I am trying to plan ahead for when the engineer's report is completed and should it state the causation of the wall damage is excess moisture from neighbor's yard (human caused), then how to reinforce to the Board based on the CC&R language and that engineer's report, the Board can't "look the other way" and have all owners pay for repair that's caused by a select few.

What's problematic is there seems to be no consequence for ignoring the CC&Rs and engineer's report and paying for repairs with no chargeback to owners. If the same neighbors are there 3 years from now with the same landscaping and they are uninformed, the same exact problem will happen again.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By NpB on 04/20/2022 5:56 PM

I am trying to plan ahead for when the engineer's report is completed and should it state the causation of the wall damage is excess moisture from neighbor's yard (human caused), then how to reinforce to the Board based on the CC&R language and that engineer's report, the Board can't "look the other way" and have all owners pay for repair that's caused by a select few.

What's problematic is there seems to be no consequence for ignoring the CC&Rs and engineer's report and paying for repairs with no chargeback to owners. If the same neighbors are there 3 years from now with the same landscaping and they are uninformed, the same exact problem will happen again.

-- For what it is worth, I think there's no question that, if an owner causes damage to common area, the CCRs require the owner to pay for repairs.

-- I also agree with your concern that, without consequences, the problem will repeat.

-- The possible consequences for ignoring the CCRs are, pursuant to Arizona statutes, a complaint to the Arizona ombudsman may occur. An owner (including a sitting director) could complain and force the board to comply with the CCR. (This assumes the damage is entirely the owners' fault. I am not convinced as of yet that the damage is entirely the owners' fault, but you are, so there's my 1.5 cents.)

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 04/21/2022 6:41 AM

Posted By NpB on 04/20/2022 5:56 PM

I am trying to plan ahead for when the engineer's report is completed and should it state the causation of the wall damage is excess moisture from neighbor's yard (human caused), then how to reinforce to the Board based on the CC&R language and that engineer's report, the Board can't "look the other way" and have all owners pay for repair that's caused by a select few.

What's problematic is there seems to be no consequence for ignoring the CC&Rs and engineer's report and paying for repairs with no chargeback to owners. If the same neighbors are there 3 years from now with the same landscaping and they are uninformed, the same exact problem will happen again.

-- For what it is worth, I think there's no question that, if an owner causes damage to common area, the CCRs require the owner to pay for repairs.

-- I also agree with your concern that, without consequences, the problem will repeat.

-- The possible consequences for ignoring the CCRs are, pursuant to Arizona statutes, a complaint to the Arizona ombudsman may occur. An owner (including a sitting director) could complain and force the board to comply with the CCR. (This assumes the damage is entirely the owners' fault. I am not convinced as of yet that the damage is entirely the owners' fault, but you are, so there's my 1.5 cents.)

I welcome your thoughts and thank you for them. Do you think it would be considered "treasonous" or a breach of duty of loyalty to the Board if a sitting director brings up a case to the ombudsman for failing to adhere to the CC&Rs?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By NpB on 04/22/2022 5:22 PM
Do you think it would be considered "treasonous" or a breach of duty of loyalty to the Board if a sitting director brings up a case to the ombudsman for failing to adhere to the CC&Rs?

No. I would think just the opposite. Why? Because a director's fiduciary duty is to the corporation. The corporation's mission in large part is to enforce the CCRs, including ensuring that HOA money is spent as directed in the CCRs.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 04/23/2022 5:34 AM

Posted By NpB on 04/22/2022 5:22 PM
Do you think it would be considered "treasonous" or a breach of duty of loyalty to the Board if a sitting director brings up a case to the ombudsman for failing to adhere to the CC&Rs?

No. I would think just the opposite. Why? Because a director's fiduciary duty is to the corporation. The corporation's mission in large part is to enforce the CCRs, including ensuring that HOA money is spent as directed in the CCRs.

Good points. Beyond being awkward, if a current sitting director has an ombudsman case against the rest of the Board, would the plaintiff director be copied on all correspondence regarding the case? How would the plaintiff director be able to represent both sides?

NpB (Arizona)
Posts: 605

Posted:

Update: Found out that in AZ through the HOA dispute resolution process, a director cannot file a petition against an association.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By NpB on 04/23/2022 4:16 PM
Update: Found out that in AZ through the HOA dispute resolution process, a director cannot file a petition against an association.

Do you have a citation for this claim?

I do see signs that the Arizona ombudsman yada will only hear complaints of violations of the Arizona HOA/COA statutes.

In the event that you as a director could file a claim using Arizona's process, there is no question in my mind that the Board would have the right to exclude you from meetings discussing the complaint. Why? Because this is the stuff of pre-litigation; the board would be talking about what the HOA attorney said; the board majority has a right to maintain attorney-client privilege and so on; and you are an "adverse party," meaning you do not have the right to know the board's legal thinking, afaic.

Else:
I do not think anyone should complain about the board either not billing the owners in question here or only billing the owners in part. Why? Because I think this is the board exercising business judgment (or whatever it is called in Arizona). The OP may feel the case is black and white. I do not. This makes for messy adjudication where justice is unlikely and only the attorneys make money.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 04/23/2022 4:54 PM

I do see signs that the Arizona ombudsman yada will only hear complaints of violations of the Arizona HOA/COA statutes.

... and yet other sites say the Arizona ombudsman yada will hear complaints of violations of the covenants.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 04/23/2022 4:54 PM

Posted By NpB on 04/23/2022 4:16 PM
Update: Found out that in AZ through the HOA dispute resolution process, a director cannot file a petition against an association.

Do you have a citation for this claim?

I do see signs that the Arizona ombudsman yada will only hear complaints of violations of the Arizona HOA/COA statutes.

In the event that you as a director could file a claim using Arizona's process, there is no question in my mind that the Board would have the right to exclude you from meetings discussing the complaint. Why? Because this is the stuff of pre-litigation; the board would be talking about what the HOA attorney said; the board majority has a right to maintain attorney-client privilege and so on; and you are an "adverse party," meaning you do not have the right to know the board's legal thinking, afaic.

Else:
I do not think anyone should complain about the board either not billing the owners in question here or only billing the owners in part. Why? Because I think this is the board exercising business judgment (or whatever it is called in Arizona). The OP may feel the case is black and white. I do not. This makes for messy adjudication where justice is unlikely and only the attorneys make money.

The citation is found in the .PDF manual located on the website below:

https://azre.gov/consumers/hoa

Where it reads "View the HOA Dispute Process BROCHURE by clicking here." This opens a .PDF manual where it states

"Only an owner or homeowners association (HOA) may Petition the Department for a hearing. The Petition of an owner must be regarding a dispute between an owner and an association, not against an individual or individual Board member.
The Department cannot accept Petitions filed by or against renters, non-owners, directors, representatives, other homeowners or community management companies."

I don't see how a Board can deny the opinion of a state licensed professional engineer as to causation, if the engineer's professional opinion is that it is caused by owner negligence.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By NpB on 05/01/2022 6:32 PM
The citation is found in the .PDF manual located on the website below:

https://azre.gov/consumers/hoa

Where it reads "View the HOA Dispute Process BROCHURE by clicking here." This opens a .PDF manual where it states

"Only an owner or homeowners association (HOA) may Petition the Department for a hearing. The Petition of an owner must be regarding a dispute between an owner and an association, not against an individual or individual Board member.
The Department cannot accept Petitions filed by or against renters, non-owners, directors, representatives, other homeowners or community management companies."

But a director is almost always also an owner. Wearing his or her owner's hat, he/she could file a complaint against the HOA for not requiring a second owner to pay for damage the second owner caused.

On the other hand, a director who puts on his/her owner's hat and files a complaint against the HOA is now in an awkward position that few boards understand how to handle. I advise against an owner, who is also a director, filing a complaint.

I shared my thoughts on causation and mitigating circumstances already and will leave it be.

DeanJ
Posts: 1,786

Posted:

Regardless of the side of the wall, if the homeowner damaged common property (even co-owned) they are responsible for the damage.

NpB (Arizona)
Posts: 605

Posted:

A state licensed structural engineer performed an on-site visit and evaluation of the walls in questions and concluded that irrigation water from the neighboring units was the main likely cause of the common wall deterioration. Recommendations are for the homeowners to limit irrigation water near the common area wall or divert (through grading/drainage) water away from the common area walls. Thankfully, the wall is structurally sound at this time.

What is the most effective way to get the offending homeowners to cooperate to mitigate future deterioration?

How would you go about protecting the interests of all homeowners vs not alarming the offending homeowners?

Is the engineer's report a record available to all current and future owners?

This is a new situation and no one likes to be told of a problem they are oblivious to.

NpB (Arizona)
Posts: 605

Posted:

Does the HOA have any authority to require that a homeowner take corrective action or only suggestions to be cooperative for the good of all owners who own part of the common wall?

AugustinD
Posts: 1,027

Posted:

Please confirm: Which side of the wall is visible to the general public? Both sides? Or only the side not facing the owners' backyards? Are both sides showing paint and stucco damage?

I think this situation is difficult, because the owners bought the property in the belief that there were no particular restrictions on irrigating and planting shrubs et cetera.

The HOA likely has a right to make reasonable rules about the "use" of common areas. Does this mean the HOA could say no irrigation water can get on the walls?

Regarding the engineer's report: Per Arizona statute, arguably it could be withheld because litigation may be pending. I think I would vote to make it available to anyone who requests it, though. Let's not go to court.

Please remind the forum: Is this a condominium?

LetA (Nevada)
Posts: 2,679

Posted:

Augustin We have similar issues here in Vegas, There is verbiage in our governing documents that directs the homeowner to make sure the shared block wall is not damaged by automatic watering systems.

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By LetA on 09/12/2022 6:23 AM
Augustin We have similar issues here in Vegas, There is verbiage in our governing documents that directs the homeowner to make sure the shared block wall is not damaged by automatic watering systems.

Nice. This surely would have helped the OP's HOA at least a little bit. Perhaps NpB's board should make such a rule right now and have the HOA just eat the current cost of repair.

NpB, I apologize for not looking back at your earlier descriptions of the wall. Feel free to ignore my questions.

NpB (Arizona)
Posts: 605

Posted:

LetA: If you don't mind, it would be greatly appreciated if you could type out the sentence or paragraph in your CC&Rs that addresses the irrigation issue, editing out any identifying information about your HOA of course.

I live in a planned community, not a condominium.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By NpB on 09/12/2022 9:36 AM
LetA: If you don't mind, it would be greatly appreciated if you could type out the sentence or paragraph in your CC&Rs that addresses the irrigation issue, editing out any identifying information about your HOA of course.

I live in a planned community, not a condominium.

To help prevent and/or control water damage to foundations and/or walls, each Owner covenants, by acceptance of a deed to his or her Lot, whether or not so stated in the deed, to not cause or permit spray irrigation water or sprinkler water or drainage on his or her Lot to spray, seep or flow onto, or to strike upon, any foundation, slab, side or other portion of Dwelling, walls (including, but not necessarily limited to, Party Wall and/or Perimeter Wall), and/or any other Improvement.

To prevent water damage to stucco, foundations, and block walls: 1.NO MOUNDING, NO GRASS, NO PLANT MATERIAL and NO SPRAY/POP UP SPRINKLER irrigation is to be installed within five (5) feet of the block walls or home and all drip irrigated areas within three (3) feet of the house foundation must be underlain with the polyethylene moisture barrier that is glued to the foundation with the use of a mastic compound. 2.All plant material must remain thirty six (36) inches away from any concrete paving.

No landscaping can unreasonably obstruct the view from any other Unit. For all Sight Visibility Restriction Areas, the maximum height of all improvements including, but not necessarily limited to landscaping, must not exceed twenty-four (24) inches as set forth on the Plat. (Most Sight Visibility Restricted areas are located on corner lots.

DRAINAGE:Each owner must not interfere with, alter or impede the natural or established drainage on the property. Approval of plans granted by the ARC will be based upon the owner's assurance that he/she has not changed the drainage or has consulted with professionals to insure that positive drainage is maintained and that no alteration is being made that could potentially result in flooding or water damage. THE HOMEOWNER IS SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE TO: 1) THEIR OWN PROPERTY (INCLUDING, BUT NOT LIMITED TO, DWELLING, FOUNDATION, BLOCK WALLS, LANDSCAPING, AND PERSONAL BELONGINGS), 2) THEIR NEIGHBORS' PROPERTY (INCLUDING, BUT NOT LIMITED TO, DWELLING, FOUNDATION, BLOCK WALLS, LANDSCAPING, AND PERSONAL BELONGINGS, AND 3) THE COMMON AREAS.

NpB (Arizona)
Posts: 605

Posted:

LetA: Thank you very much for posting. Very helpful!

NpB (Arizona)
Posts: 605

Posted:

Our Board mailed out letters to owners mentioned in the structural engineer's report requesting a written response as to how they plan to remedy the problem. Most owners responded with specific actions they have or would undertake. However, not all owners have responded to the letter. The engineer's report mentioned that the wall would require a cooperative relationship in that on the common area side a special coating should be applied and on the homeowner side, lower watering and better drainage. If not all homeowners respond with changes in behavior and the Board goes ahead and spends money on existing repairs and this special coating, the problem might return again. If so, would you just chargeback the specific owner for future repairs? It's not fair in my opinion to the owners that have responded and made adjustments for the non respondents to get a "free ride." However, there is nothing our CC&Rs to legally mandate a response from an owner.