Litigating homeowner is David to board’s Goliath

Question: I’m an original owner in a 16-year-old tract with a homeowners association. There’s an embankment directly behind my backyard, and I’m at the low end of nine homes. I’ve been flooded out at least 10 times. What doesn’t come into my yard ends up in my neighbor’s spa.

The association installed three common-area drains, then put a 3-inch line through my yard tying it into my main irrigation line. This caused flooding in 1999, forcing me to sue the developer and association.

In 2000, without a civil engineer’s report, my board-member neighbor got the board to approve a 2-foot barrier block wall around his property to hold back water. That caused a redirect of runoff water into my yard, severely flooding my property and causing much damage to my home’s interior. The association’s water restoration experts found high mold levels and had to tear up my new carpet.

The board hired the same company to remedy the outside drain problem. It installed a new 6-inch line through my property, destroying my concrete and Italian tile patio. Its plumbers dug a trough that separated the association’s original line from mine, tearing away protective stem-wall covering. Their sealant failed, causing flooding under my neighbor’s foundation.

The board hired an expert to say that a 6-inch pipe over my neighbor’s French drain, directly next to its stem wall, works when it doesn’t. My neighbor sued the association and won in arbitration, but the insurance carrier said, “We’ll see you in court.”

The board refuses to redo the faulty work or fix the damage its restorers caused. At every meeting I ask to see the water restoration contract; the board refuses.

My attorney wrote the insurance carriers in 2003 to settle or intervene, and they refused both. I filed a lawsuit earlier this year against the restoration company, association, management company and individual board members for lack of fiduciary duty and for circulating intentionally misleading and untruthful letters to more than 90 homeowners regarding my lawsuit.

I’ve paid $20,000 in expert fees defending my position and paid my attorney $30,000. I only make $45,000 a year as a flight attendant. My attorney gave me an $80,000 estimate for fees until trial. I’m paying this using my equity line. My attorney says, “The payoff will be worth it.” Does this path sound feasible?

Answer: It is each property owner’s duty to take reasonable care to avoid injuring adjacent property through the flow of surface waters, and the equal duty of a person threatened with such injury to take reasonable precautions against the injury.

By law, the association has a duty to repair and maintain common property, but that does not mean they do it. And just because an owner can sue to have the board obey the law also does not mean that repairs or maintenance get done.

It is impossible to predict the outcome of a lawsuit because it depends on facts unique to each case and the lawyer’s skill. If your attorney is so confident that “the payoff will be worth it,” ask him to continue the rest of the case on a contingency basis through trial and not just up to it.

Three dangers exist: First, like your neighbor after completion of mandatory arbitration, you may learn that the insurer insists on litigating the matter; second, you could lose the case and a court could order you to pay the association’s legal costs; and, third, should you prevail, there is no guarantee you will be awarded attorney fees despite laws mandating that award.

It is unclear how much equity is committed toward financing litigation. Once the equity is depleted, sustaining the lawsuit on your income is not promising, and it is doubtful a buyer will purchase property pending a lawsuit.

Owners are financially burdened thrice, first during mandated arbitration before litigation, again during actual litigation and then through lost income because of continuing disputes with association boards.

Boards have attorneys handling their involvement, and legal costs are paid by insurance or association funds. Advisors to boards are well aware of this inequity, and prolonging the process -- through arbitration, litigation or depositions -- places pressure on owners while depleting their personal resources.

Please send questions to P.O. Box 11843, Marina del Rey, CA 90295, or e-mail your queries to NoExit@mindspring.com.