QUESTION: An owner in our community association almost destroyed his garage door. He tried to repair it, but it is still unsightly and detracts from the appearance of the complex. Can the board of directors demand that he fix it and give him a deadline for completion? If he doesn't take care of it, can the association fix the door and then bill the owner for the cost of the repair? Can the board file a lien on the property and start foreclosure if he fails to pay?
ANSWER: In some associations, the garage doors are maintained by the association. First, you should decide who is really responsible for this repair. If it is the owner's responsibility, how can the association ensure that the work is completed properly?
These are legal issues that depend upon your association's power and authority. The governing documents of the association explain the association's enforcement procedures that can be implemented when an owner fails to maintain his or her property. The declaration of covenants, conditions and restrictions (CC&Rs;) will usually contain this information. If your association was formed many years ago, you may not have a declaration. In that case, you will find the information in the bylaws. I urge you to consult your association's attorney if this is an issue that you have not had to deal with previously.
Unless the association's documents clearly give the board the authority to repair or maintain on behalf of an owner, it is not advisable to do so. If the association does have the right to proceed, it is essential that the board communicate in writing with the owner to let him know that the repair is not acceptable. I recommend giving the owner an opportunity to meet with the board. The board should determine what the cost of the repair will be and include that information in the correspondence with the owner. Then the board should give the owner an opportunity to correct it himself or respond in writing if he is unable to complete work within a specified amount of time.
The authority to file a lien depends on the specific wording in your governing documents. If the owner does not pay, the board should consult the association's attorney before filing a lien. Many associations allow a lien to be filed only for nonpayment of monthly or special assessments. I have seen declarations that allow a damage reimbursement to be considered a "special assessment" against the owner who fails to pay. Because there are many specific situations that vary from one association to another, it is wise to proceed with caution.
Should Association Enter Noise Dispute?
Q: We live in a two-story condominium complex where an owner on the second floor uses fans that are placed on the floor of his unit. The hum and vibration bothers the unit owner on the first floor. After many complaints, the upstairs owner raised the fans off the floor, but the downstairs owner still complains that he is losing sleep from the disturbance. The fan owner refuses to discuss the problem.
Is this a dispute that the association should be trying to solve? Some owners feel that the two owners should resolve this between themselves. However, the first-floor owner is the board president, so he has directed the management company to hire an attorney, and many letters have been written to no avail.
Our declaration states that either the association or any individual owner can take steps to enforce the restrictions against "unreasonable noises which interfere with the enjoyment of other residents." If this results in litigation, will the association have to pay all of the costs? A counter-suit has been threatened, so the legal expenses could be substantial.
How do we determine whether this is a private problem between the two owners or an association problem?
A: The lawsuit threats are flying, and that just escalates the animosity. This is a problem that should be mediated between the two owners. According to California Civil Code, some form of alternative dispute resolution must be attempted prior to filing a lawsuit in this type of situation.
If no one else is affected by the noise, the board members should vote to determine whether the association will accept the responsibility to cure the problem. In a neighbor-versus-neighbor dispute like this, it is helpful if a neutral person from the association can convince the two parties to talk about the problem.
It appears that it is too late to settle this in a congenial manner unless someone can convince the two parties to be reasonable. Perhaps if the second-story neighbor is given the opportunity to visit the downstairs neighbor and hear the sound of his fans, he will agree that they are too noisy. The first-floor neighbor has a right to peace and quiet, especially at night.
Hiring a mediator or arbitrator is the next step. The board members should decide whether the association will be involved in the mediation as one of the parties or whether this should be a neighbor-to-neighbor arrangement.
The board president exceeded his or her authority if attorney fees are accumulating without the approval of the rest of the board members. In my opinion, the board president who is personally involved in the dispute should not even have voted on whether to engage the attorney.
Neighbors Won't Share Cost to Fight Termites
Q: I live in a planned development. My unit is an end unit attached to two other units. A 35-foot supporting beam in our living room is infested with termites. The association is not responsible for termite treatment.
The other two unit owners in my building say that they do not have any termites, so they are refusing to allow the building to be tented or to share the cost.
What can I do?
A: Your neighbors would be wise to allow a thorough inspection of the entire structure. If they refuse to cooperate with you, you will have to treat the termites with some type of localized treatment. If localized treatment is not possible or is not successful, you can obtain three opinions from reputable, licensed companies and try to convince the others that they should protect their units by working with you to eradicate the termites.
If other owners in your association are having similar problems, you may want to survey the entire association to see if there is any interest in taking the legal steps to make the association responsible for termite treatment. The association would then have the legal authority to require the owners to cooperate with the most effective treatment method on a case-by-case basis. The association would pay for the work and bill the owners for a special assessment to cover the cost of the treatment.
No Agency Oversees Condo Associations
Q: What agency oversees homeowner associations and condominiums? Will the agency enforce the CC&Rs; and bylaws? My neighbor and I would like to file a complaint about our board of directors for failure to comply with the association's legal requirements.
A: There is no local or state agency that oversees community associations after the association is past the involvement of the original developer. The developer of a new common interest development must go through a lengthy approval procedure with the California Department of Real Estate. During the marketing phase of the project, the Department of Real Estate will follow up on complaints about noncompliance with the legal documents of the association.
After the association is transferred to the control of the homeowners, there is no further supervision of any public agency. The owners who are elected to serve on the volunteer board of directors are sometimes qualified and sometimes woefully inept. Homeowners should actively participate in the association and carefully elect board members who are knowledgeable, fair and committed to the common good of the association members.
The board of directors has a fiduciary duty to operate the association in compliance with the governing documents. Peer pressure from the owners will often cause a board to be more diligent and responsible. If this is not effective in your association, you can elect new directors when the next election occurs.
If the board is misappropriating the association's money or is engaged in other criminal activity, you may want to hire an attorney who specializes in the representation of community associations. Perhaps with the attorney's guidance you can gather enough evidence so that you can report the board of directors to the police or file a civil suit. The attorney can also assist you in preparing for the next election so that new directors will be able to take control.
Hickenbottom is a past president of the Greater Los Angeles chapter of the Community Assns. Institute, a national nonprofit research and educational organization. She welcomes readers' questions, but cannot answer them individually. Readers with questions or comments can write to her in care of Condo Q&A;, P.O. Box 5068, Thousand Oaks, CA 91360.