February 5, 2010
There's No Such Thing As A "Slam Dunk"! A True Story
This is a lesson for both HOAs and Owners who want to consider litigation. It is an experience I had when doing litigation years ago.
The Association contacted me for assistance. An owner (we will call them Owner A) was complaining about a neighbor's (we will call them Owner B) use of a basketball standard in their back yard. This was a “zero lot line” community meaning the lot line for one unit was an exterior wall of a neighboring unit. The owner that complained was a day sleeper who worked nights. The “neighbor” was the husband in a young family with two children. He also was a “wannabe” semi pro basketball player and loved the BB standard. He brought his daughters out every day to play some B’ball. The “backboard” for loose balls was Owner A’s bedroom wall.
You can imagine the situation. Owner A was not getting sleep. Owner B was determined he had a right to play BB in his back yard. The Association’s CC&Rs banned basketball standards in the development. The Owners complained to and about each other and to the Association Board of directors. Tempers flared. Owner A claimed Owner B played B’ball more than ever, all day long and at times simply bounced the ball against the wall for hours on end. Owner B claimed Owner A tried to run him and his kids down when they were walking to the mailbox. Yes, it was bad.
Entrance: me. Through my assistance, the board tried letters, fining, threats, and everything else. We even had a “mediation” of sorts and tried to get Owner B to move the BBall standard from one side of their home to the other. That side of the yard backed up to the back yard of the realtor who sold the home to Owner B (and who was singlehandedly responsible for the entire situation). If balls went astray they would pound that fence or go into that yard. This would be poetic justice I felt. The details would make this blog too long but are covered in my condolawguru.com blog called “Is Eight Years Too Long?” Owner B would not budge. He was adamant about his rights.
The Association sued. They were in the right but that did not mean it would be a painless process. The courts were clogged enough already, and a law had just been passed that required courts to get to trial within one year of filing, so many cases were pushed up. Getting a courtroom was a nightmare. After going back to court 4 times, meaning the board members had to take time off of work 4 times (and I had to rearrange my schedule 4 times), we got into court! Yay! (One would think.)
The other attorney and I went into the judge’s chambers to talk about pretrial motions. The judge was being very resistant to my client’s case. It seemed he wanted the HOA to back down. I cited a now famous case which had just come down from the California Supreme Court upholding the integrity of HOA CC&Rs which should have been taken in my client’s favor (Nahrstedt v. Lakeside Village Condominium Association). The judge’s response was that the 30 days to appeal had not passed and he would not consider the case.
Okay, that first day of trial was rough. It really seemed the judge was being very difficult. That evening, the manager of the HOA called me and said he remembered where he had seen the judge. He lived in one of the manager’s HOAs and had been called to a hearing on a basketball standard matter. His problem was he refused to paint the basketball standard the same color as the garage, which was the association rule. The association had threatened to fine him and he had threatened to sue the association.
Great! The next day of trial I and the other attorney went into chambers and I asked the judge to recuse himself because of this situation. He said that he could be fair, but did recuse because the same management company represented his association as this one in court.
So we were back to square one. We got another judge, went back to court, and this time, the trial went fast, was over by about 2, and the judge did not even want closing arguments. He ruled right away, in favor of the association. Owner B stomped out of court and fired his attorney on the way (a little late I would say).
And the judge ultimately granted about 90% of the association’s attorney’s fees be reimbursed, discounting all of the fees charged for coming to trial on days when there was no trial. He said that was not the client’s fault. (It was not my client’s fault either, but so be it.)
It took about 3 times of hitting Owner B’s bank account on payday to recover the fees. Of course, he did not pay them willingly. And the board members of course did not recover any time lost from work or anything for the incredible inconvenience to them. It was an excruciating process for what should have been a simple “slam dunk” case.
The moral of the story is: THERE IS NO SLAM DUNK!!! Don’t think court will be painless, even when you “win”
Sometimes there is strange “justice” though. I heard several months later that the first judge went back to his HOA and agreed to paint his house the same color as his basketball standard! I hope it’s true. If so, then one more judge got “educated”.
Posted by Beth Grimm at 8:07 PM
Don't Get Bamboozled Into A Lawsuit!
Okay, now I have seen it one too many times and feel the need to vent. There is no such thing as a "slam dunk" in court.
The scenario is this. A party - it may be a homeowner, it may be an HOA or Condo Association board - goes to an attorney and that attorney gets all excited about their "case". He or she says "THIS IS SOMETHING YOU SHOULD LITIGATE, DEFINITELY. IT's A "SLAM DUNK".
Some other word may be used instead of slam dunk. It may be "a great case", "a winner", "you are clearly in the right", or something like that.
I am going to keep this to the homeowners association context because that is where my experience lies. Guess what, it does not always matter if you are in the "right". And many times, the situation seems like you are in the "right" and then you find out you are in the "wrong" - wrong frame of mind I mean.
Something that happens all too often is the attorney says (taking a retainer up front), I need a $5,000 retainer to get the lawsuit started. Since its such a good case it should not be protracted or cost a lot more than that.
What the client hears is "for about $5,000, we can win this case."
When the attorney turns around and says "I need another $5,000 to take this to the next step, now remember, you may be able to recover your attorney fees in this case." the client hears: "{For whatever reason is imagined}, another $5,000 should win it and then you will not only win but get your legal fees back."
... and so on, and so on, until things are up around $25,000 or $80,000 or more. And then the client is in so deep they do not know what to do next.
I do not know whether it is the client who does not hear the attorney, or the attorney who does not present ALL POSSIBILITIES, INCLUDING THE BEST AND WORST POSSIBLE SCENARIOS in any matter that ends up in court. People do not understand additionally that once a lawsuit is filed, and the attorneys fees mount in cost, that one cannot simply drop the lawsuit and expect no ramification. Dismissing a lawsuit does not dismiss the possibility (in California at least) that the other side might file to recover their fees, calling the dismissal a failure to "prevail".
Don't get sucked into a lawsuit without a full understanding of what can happen. To come next, a blog about a true case called: "There's No Such Thing As A Slam Dunk!" And don't forget to look back at this blog: "Should You Get a Second Legal Opinion Before Suing?"
Posted by Beth Grimm at 7:43 PM
February 1, 2010
COOKING SMELLS, IS THERE RELIEF IN AN HOA OR CONDO?
I get all sorts of emails about problems in HOAs and Condos. Here is a difficult one:
"My problem is two-fold: 1. Hours upon hours of curry cooking by my upstairs neighbors. 2. When the downstairs unit turns on their kitchen exhaust fan the smell is concentrated inside the walls around the kitchen exhaust vent piping, which then enters my unit through my kitchen, laundry room and hall bathroom. (all these rooms share common walls around the ducting)
Is there any law that would help?"
This person believed there was a crack in the venting that is causing the smell to escape the pipes between the walls. The smell is very pervasive. The writer says: "My eyes burn, and the smell is linguring on my belongings, etc. To me this is air pollution and a nuisence. I can't open up the windows, because the outside air around my end unit is thick with the smell of curry. "
The writer believes that the heavy curry and grease combination is a fire hazard. The writer says that it is very difficult to get the smell out of the walls and rugs, or do anything about the cooking itself. (I wonder if they have tried to talk to the neighbor.)
The writer believes there is a need for a company that specializes in running a probe that detects leaks up through downstairs units kitchen vent piping and says that it would would probably mean going though the walls the unit to repair. A difficult problem and not that uncommon. It is similar to a smoking issue except that there are not studies that find second hand curry to be hazardous to the health. Some of the remedies would be similar, and there are websites that suggest how to block smells between units when there is a problem with cigarette smoke. You might search for smoking smell solutions or similar terms. The same measures might work for curry smells. There are companies that specialize in this sort of thing, right down to insulating outlets.
It is similar to noise issues but the remedies are different. Dealing with the issue with the neighbors is similar though, and communications might lead to some relief, if the people cooking with the curry are willing to talk. There are various ways to approach the neighbors and deal with the issues discussed in a Primer available on my website - the Enforcement Advanced E-4 Primer that deals with neighbor to neighbor issues. (See the webstore - $25.)
And it sounds like in this case that the association might get involved. The writer says that the association says if it finds nothing wrong with the venting system, it will charge the owner the costs of any investigation. That may not sound especially fair; however, the HOA may have taken that position feeling that the owner's claim that they believe there is a problem with the common area venting system is just an attempt to "pass the buck" to someone else to deal with this difficult situation.
If the owner cannot get resolution through taking reasonable measures to block the invading smells, he or she might have some luck pursuing a nuisance claim in small claims court. One can file for money damages for a nuisance. No guarantees though. The writer would have to convince the judge hearing the case that the curry use is overboard and a real nuisance. The most likely success would come if the owner can prove that the excessive cooking with curry is a danger (quoting studies or believable articles that the writer says are available), or is adversely affecting his or her health (such as the burning sensation in the eyes, note from the doctor, etc.). If the writer had sensitiviities or allergies, there might be some basis to file a claim based on adverse health issues. I would not start there, but one might end up there if the affect is really adverse to the health.
It sounds like there might be a problem with the venting system if it does not absorb the cooking smell to some degree. Maybe this is something the curry cookers might look into, if they were willing, i.e., a better stove exhaust system.
It's a tough one. I do not have an easy answer, but in the Primer I do discuss how to deal with difficult neighbor to neighbor issues. And how to determine when the Association should (or should not) get involved.
Anyone out there have any solutions or suggestions? Send me an email.
Posted by Beth Grimm at 9:57 PM
January 24, 2010
No Candidate for President of the HOA - What Do We Do?
Here's the question: "Our current president has declined to run for a second term, while another candidate who wants the position is unqualified because he is not an owner (his wife is co-owner of their unit with her father). What options do we have? Our CC&R states that there must be at least three members of the board.At this point, we have candidates for vice president and secretary/treasurer, but neither of them wants ro run for president."
The Board could propose an amendment to the Bylaws to allow non members to serve. That is one option to open up the pool of possible candidates. Most association elections do not elect by office, the members elect the board members and the board then meets and decides who will fulfill the offices.
Posted by Beth Grimm at 10:39 PM
January 16, 2010
Who Fixes What in a Condo or HOA?
When anyone in a shared amenity situation has a question about who maintains what, there are a number of things to consider. Naturally, a simple and inexpensive problem may be easier to solve than a complicated one. If there is not a big investment, the sides (board and owner or neighbor-to-neighbor) are less inclined to fight about it. One or the other may just make the repair and let it go. However, that can lead to issues in the future. Once a board establishes a pattern of fixing something it is not responsible for, or requires some owners to fix something they are not responsible for, and then finds out that it was an improper assessment of responsibility, it can open up a can of worms. Getting off on the wrong foot with regard to maintenance responsibility can spiral out of control.
If you want to see an example of how things can spiral out of control, sign up for the E-news on my website. A full E-newsletter on the subject is coming out next Wednesday and it will be posted on the website a few days after that in the E-news archives.
The things to consider in sorting out responsibility in any maintenance dispute or question include:
[Ownership of the item] It is important to know who owns the property that is damaged. The maintenance and repair obligation does not always fall on the owner, but establishing this basic fact will surely come into play if there is no documented responsibility in the HOA or condo association documents.
[Governing Documents] What, if anything, do the governing documents for the HOA or Condo Association (which include Articles of Incorporation, Bylaws, and CC&Rs; or Rules and Regulations, if these items exist) say?
[California - or other state's - Law on the Subject] What does the law (including statutes and cases) say?
[Location of Damage] Is the damage or work that is needed in a common area or in an exclusive use common area (area accessible or used by only one or a few, as opposed to all owners), or in an individual’s separate interest area (separate interest means that part of the property that is owned by an individual such as a unit or on a lot)?
[Cause] What or who caused the problem? Can the cause even be determined? Are there disagreements as to the cause? Was negligence, carelessness, or intentional conduct the cause?
[Past Practice] Has this problem come up before and how was it handled then? Are there any issues likely to arise about what has been done in the past?
[Legal Exposure] Is there any advantage or disadvantage, problem, or legal exposure if the association does the repair and it turns out that it was not the responsibility of the association, or vice versa with regard to an owner(s) making the repair?
[Precedent] Would the association benefit by retaining control over the repairs and what is to be done, or set an undesirable precedent?
***
It is important to consider all of these things …and then … there is a lot more to doing the right thing and averting disaster. The NEW! Maintenance Primer available on my website at www.californiacondoguru.com contains comprehensive information about who fixes what in an HOA or Condominium Association and addresses policy setting. Additionally, ECHO (Executive Council of Homeowners, www.echo-ca.org) recently published Part I and will publish Part II of an article on the subject written by me in the ECHO JOURNAL. (And ECHO is a great resource - check out the annual seminar coming June 19 – what a place to go if you want to get smarter about living in or running a homeowners association.)
Don’t be caught “in the dark” and wonder who is responsible for the lights!
Posted by Beth Grimm at 12:49 PM
January 14, 2010
Are HOAs and Condo Associations on Their Own with Animal Control?
Here's a good question. Can the local animal control or police department refuse to come into an HOA or Condo Association when called about an animal situation or what would normally be a police matter claiming they do not have to provide services to private communities, i.e. CIDs-common interest developments?
Here is a good answer. People in these communities pay property taxes and special assessments that fund these services too, so I would have to say generally, the answer would be no. Refusing to provide services would be wrong. Listen to this story recently sent to me, some of the names and statements are changed slightly so as to not point any fingers to anyone specifically:
Story: A homeowner called management stating that a huge Rottweiler broke through their neighbor’s fence and into their backyard and ended up jumping up onto a resident, knocking her down and ended up getting inside of their home. The resident was able to confine the dog to one room and contacted 911. The operator said that they (the police) no longer handle animal calls and that they would need to call the [local county animal control office]. They called and were told that it is a gated community and they wouldn't respond saying that it was an association responsibility. When contacted, the [local animal control office] person that answered was very rude and stated that it was the association's problem and then hung up on the manager. [To be fair, there was some talk about holding the personnel personally liable if any injured party sued the association.] The manager then contacted the police department and explained the whole situation to them. The police did end up sending an officer out and demanded that the [local animal control] respond. The [LAC] then called the manager and advised that they would send someone out this “one time” but that they needed management on site to sign the dog over. The person said that they will not be responding to any gated community issues in the future (confined or not). Luckily (or not) the residents were able to get the dog owner to come and get the dog before animal control got there.
The manager went on to report that the [LAC] informed the manager that when calling the [LAC] for assistance, that they [the HOA/Management/ or Resident] had to capture the dog, then call them to pick the dog up!
Does this sound like a recipe for disaster?
As a rule, neither boards, managers or residents are specially trained to deal with loose and especially threatening animals, or sick and injured animals, or animals dumped by the side of the road. Don't people pay taxes to have access to these specially trained people? I say, yes.
I know of no case where any governmental agency that is in place for the protection of people (or animals) has an exemption from acting on behalf of people in homeowner associations, gated or not. The county animal control authorities and the police are paid by taxes and people in associations have just as much right to expect their services as any other taxpayer. If they are not responding properly (as appeared to be the situation here) then something should be done. One thing might be to submit a letter in writing to them to demand they respond when appropriate and suggest that the HOA would hold them accountable so there is a record of the request/demand for services (assuming it is a reasonable communication - a bad example or irrational request/demand does not help).
That way, if the agency does not act appropriately and the association suffers losses, a legal claim against the agency may be supported.
HOAs can be thrown out of court when they go in on animal cases and no one has contacted animal control first and asked for assistance. It is commonly one of the prerequisites to filing animal -related complaints in the courts. It is called "exhausting administrative remedies" first, before coming to court. Thus, I have been recommending it for years (having had experience with the courts in these matters).
To be fair, perhaps there is a specific issue because of a gated community. If animal control or police cannot get access because of a required key or gate code, then I could understand a requirement that someone from the association or management be present when they come to let them in. The police department may require that a gate code be kept on record for purposes of entry, but I doubt animal control offices want the responsibility of keeping or having available to the drivers the code, and even if they want it, an HOA may not want to give it out.
But overall, I believe it fair to say that HOAs and Condo Associations have a right to expect reasonable services (comparable to those offered to the general public) from governmental entities which exist for the safety of the public (or animals) and are supported by taxes paid.
My two cents ...
Posted by Beth Grimm at 2:29 PM
Lights On In the HOA? Or Lights Off?
I have readers who have different opinions about things, and HOAs and condo associations have different types of owners who have different opinions about things. It is important for board members to not only get educated about what is required by law, and what are good things to do with regard to community finances, maintenance and the like, but also to get themselves educated on what the owners want - especially when areas of controversy arise. Many boards think they have their finger on the "pulse" of the community, but really do not.
Here is a note from a reader that illustrates this:
"I was on your blog reading about HOA lighting issues. We have a related issue that is actually a 180 of what you discussed. We have an HOA with plenty of lighting but there are homeowners that want to have them shut off. What are the laws related to keeping the lights on?"
Good question. None really. Except for cases like those that define what conditions or lack thereof can lead to HOA liability, or exploring the idea of fiduciary duty. One of the leading cases in HOA law in California involved a beating and rape of a resident. The resident complained about the dark common area around her home and asked the board to put up lighting. The board refused. The woman had some lighting put up. The board ordered it removed. The woman was beaten in her unit. She sued, and guess what, she won!
On the other hand, overdoing lighting can result in sleep deprivation. And boards have enough trouble dealing with owners when they are not sleep deprived..... so - the logical (or illogical?) answer to the question of how much lighting is just right? ... Enough to avoid liability for having too little, especially in areas where there are possible walking path hazards or reports of prowlers or crime. Little enough so as not to keep all the residents awake. And not so much that the electric bills are unnecessarily "sky high".
A good way to find out what the majority of owners want is not to "ass-u-me", but to send out is a well worded survey. And one more note - well lit parking areas tend to keep the riff raff from gathering under the carports.
And that's the truth!
Posted by Beth Grimm at 12:46 PM
