Who is responsible for street light wires being damaged?

Started by MarkK17 • 16 replies • 310 views

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MarkK17 (Michigan)
Posts: 13

Posted:

We have a small HOA that owns and maintains our own street lights.

An HOA member had lawn irrigation installed and the buried line was cut in several spots.

No effort was made by the homeowner to locate the lines. The contractor claims that they are not responsible since the lines were not marked and the lines were to shallow.

The homeowner is asking for assistance to replace the wire.

Is there a legal precedent for resolving this.

Thanks,
Mark

ElleN (Idaho)
Posts: 1,334

Posted:

-- The only legal precedent is general tort law.

-- You could certainly turn this over to the HOA's insurer and see what the insurer says. The HOA insurer might possibly contact the homeowner's insurer. But I caution your board: HOA insurers everywhere are looking for excuses to jack up rates or even decline renewal of insurance policies.

-- The enemy here is the court system and the cost of attorneys in general. These costs could easily exceed the costs of the repair. Your board and the homeowner must absorb this reality before the expenses for attorneys start skyrocketing.

-- Determining the duty of the contractor, whether the contractor has correct licensing and insurance and so on is something that could be investigated. Determining the duty of the HOA regarding the lines being marked and the depth is something that could be investigated. All this investigation will cost a lot of money.

-- Explain these realities to the owner. Quote back to the homeowner the covenant pertaining to damage a homeowner causes to common area elements and the HOA's right to assess the owner for the repairs. Ask the owner to split the costs of the repair. If he/she will not, assess the owner for the full cost of the repair. Let him/her lawyer up and make the first judicial move. Hopefully the homeowner will come to understand that his/her costs for the attorney might very well exceed just splitting the repair cost.

-- Wise attorneys will point out the realities above and discourage litigation.

-- Subsequently research whether the HOA has installed and marked the lines properly. Hire a professional to assess this.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I'm surprised that the contractor actually did any work without verifying that lines were marked - which makes me question his qualifications. He could have been electrocuted or cut through a gas line and caused an explosion. The qualified contractors in my area refuse to start unless they see spray paint marking the utility lines - and every home in an HOA has utilities unless the entire community is off the grid.

So, I also wonder whether this contractor even has insurance.

I'm not a lawyer or insurance expert, but I believe that this is 100% on the homeowner, since owners are typically responsible for the actions of their guests and invitees. The worker was not hired by the HOA. It would be up to the homeowner to settle with the worker.

I would maybe run this past the association attorney to see if there is any reason for the HOA to be liable - for instance, does the HOA have an easement through which the street light lines run? Nothing bad happened, but something bad could have happened. And insurance/legal liability can be complicated.

MarkK17 (Michigan)
Posts: 13

Posted:

Thanks for the advice.

One of our HOA members is an attorney and I'm waiting for his advice.

I worked for a utility and have marked many miles of cable. Miss dig only locates public utilities or at least utilities that are members.

There are lots of disreputable contractors but, in their defense, this was on the homeowner to locate the wires. Contractors call Miss Dig and go to work. Private utilities (power/wire/gas) are the homeowners responsibility to protect.

I don't know if he has contacted his insurance.

I don't know if we have language in our bylaws/ covenants that dress this matter. I'll check.

Mark

SheliaH (Indiana)
Posts: 6,964

Posted:

I seem to recall that part of the reason you call the city to locate utility lines before you do certain work is that making a mistake can affect several households, including yours. That could result in a safety hazard in a big way, and even more repair costs.
Not to be mean, but the homeowner doesn't have an excuse for this - he or she knew or should have known about calling the utility companies to have them come out and mark the locations. I've seen and heard radio and TV ads to this effect, and a reputable contractor would tell you this before the work even starts.

You didn't say if the HOA member/attorney is on the board or not - getting his/her take is fine, but you really need to be speaking to the association attorney about this, so the association will know its options. Start with him/her sending a letter to the homeowner stating there will be no assistance from the HOA because it was his/her responsibility to have the lines identified, and so he/she is responsible for all costs. How the homeowner and the contractor resolve this is their business, and the homeowner might also face fines or legal action from the city and/or county.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MarshallT (New York)
Posts: 414

Posted:

I would say this issue is between the owner and the contractor they hired. it would not be fair to ask other members to pay for the contractor's mistake.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By MarshallT on 11/26/2024 11:04 AM
I would say this issue is between the owner and the contractor they hired. it would not be fair to ask other members to pay for the contractor's mistake.

I agree. Not an HOA issue.

MarkK17 (Michigan)
Posts: 13

Posted:

To be clear, in this instance, MissDig was called and the public utilities were marked. The line in question is a private line, similar to putting a buried line between your house and barn. No one other than the property owner is responsible for locating that line.

The attorney is president of the board.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By MarkK17 on 11/26/2024 1:49 PM
To be clear, in this instance, MissDig was called and the public utilities were marked. The line in question is a private line, similar to putting a buried line between your house and barn. No one other than the property owner is responsible for locating that line.

The attorney is president of the board.

Is that not a clear conflict of interest?

SheliaH (Indiana)
Posts: 6,964

Posted:

Hm, I missed that - I thought Mark spoke to a neighbor who happened to be an attorney. And yes, you're right, this would be a conflict of interest - one that I'm sure the homeowner will bring up if this escalates to legal action. Get another attorney to take the lead on the association's response.

That said, I think you know the answer to this - the owner should be held responsible for the damage and the association shouldn't have to pay anything. It's unfortunate this will not be cheap, but he could have hired someone to look for the line if it wasn't owned by a utility.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

DeanJ
Posts: 1,786

Posted:

We recently had a similar event when a fiber optic company hired a contractor to install cable.

The contractor cut underground electric lines for both public street lights and private electric lines that serviced pond fountains. The repair the lines to the fountains, a section of side walk had to be busted out and replaced.

The location of the lines had been marked as provided by law.

The electric utility paid for repair of the public street lights, but refused to pay for lines going to the common areas.

The contractor eventually ponied up and repairs the cut cable to the common area.

Had the contractor refused, the HOA would have repaired the lines and sued the fiber optic company and the contractor.

The HOA has zero responsibility for the damage. The position of your HOA should be we don’t care who is responsible. We are going after the owner and the contractor if this is not repaired.

ElleN (Idaho)
Posts: 1,334

Posted:

Quote:

Posted By CathyA3 on 11/27/2024 4:49 AM

Is that not a clear conflict of interest?

No. For one thing the attorney is not being paid for advice.

The attorney does have certain ethical obligations in this scenario. He should not be giving "legal advice" to the HOA. But "legal advice" has an exact meaning. The term "legal advice" should not be taken colloquially.

I do think most attorneys serving HOA boards would ask the board to retain an attorney.

Otherwise most everything an attorney, who happens to be on the HOA board or serving as an HOA officer, says would be a professional conflict of interest, because everything he/she says could be construed to be "legal advice."

MarkK17, please clarify: Is the President also a director on the board? Officers and directors are not necessarily one in the same. Your bylaws will clarify. Most newbies to HOA lingo do not realize there is a difference.

MarkK17 (Michigan)
Posts: 13

Posted:

We are getting into "subject creep" here and I'd rather not go down that path.
Our bylaws are clear on the difference between board members and directors.
Does that mean we aren't "newbies"?

Mark

ElleN (Idaho)
Posts: 1,334

Posted:

Quote:

Posted By MarkK17 on 11/27/2024 9:11 AM

Our bylaws are clear on the difference between board members and directors.

"Board members" and "directors" are one in the same thing.

Officers (meaning President, VP, Treasurer, Secretary) are not necessarily board members (a.k.a. "directors").

If the President is not also a director, legally it matters.

ElleN (Idaho)
Posts: 1,334

Posted:

MarkK17, if your HOA is a corporation, then skim the Michigan Nonprofit Corporation Act for the word "director" and "officer." Notice the distinction.

Link to the Michigan Nonprofit Corporation Act:
https://www.legislature.mi.gov/documents/mcl/pdf/mcl-Act-162-of-1982.pdf

LetA (Nevada)
Posts: 2,679

Posted:

Were these private lined marked on the plats of your governing documents? Were they marked on the plats that are field
with the Recorders office?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By ElleN on 11/27/2024 9:21 AM

Posted By MarkK17 on 11/27/2024 9:11 AM

Our bylaws are clear on the difference between board members and directors.

Adding to what Elle said, the board is often referred to as the "board of directors".

And boards that feel they're lacking some expertise can appoint a homeowner who does have the expertise to serve as, for example, the Treasurer. This is not unusual.

(A year or more ago, we had a poster from Michigan who said that her community's CC&Rs were referred to as bylaws. So it's possible that Michigan uses terms that are not consistent with other states. But that's speculation - too busy with cranberry sauce and pumpkin pie to look it up....)

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