Who Pays for Damage Caused by Leaky Roof?

QUESTION: We live in a townhouse complex. The homeowner association is responsible for all common areas, including the roof. After the roof was replaced by the association, we had a leak that damaged our ceiling. The contractor was unable to fix the leak right away, so we have extensive ceiling and wall damage. We asked the association to repair the damage that resulted from the common-area roof being improperly replaced.

The association denied our claim, stating that any interior repairs were the unit owner’s responsibility. How can the association escape responsibility?

ANSWER: Without having an attorney review your association’s legal documents and insurance policies, this is a tough call. Several legal issues are involved, so you may want to contact an attorney to ascertain your rights and alternatives. Even when there is no legal basis for denying responsibility for a claim, some association boards try to stonewall homeowners.

If your declaration of covenants, conditions and restrictions states that the association owns the walls and ceilings, then the association is probably liable for the repairs to the drywall inside your unit. However, some declarations state that the association is not responsible for interior damage regardless of the cause.

The association should have required that the contractor provide evidence of liability insurance. If the association was negligent by not requiring liability insurance or if it did not require the contractor to make repairs in a timely manner, there may be liability on the association’s part.

Since the association was the party that entered into the contract with the roofing contractor, I believe that the association would be the party that could present a claim to the contractor’s liability insurance carrier. You should document everything in writing with photographs and delay doing any of the repairs yourself, if possible.

Another option is filing a claim with your insurance carrier for your interior damage; then your insurance company may be able to subrogate the claim. Subrogation occurs when your insurer pays your claim but then the insurer goes after the contractor’s insurance or the association’s insurance if there is a legal basis for doing so.

Small claims court may be the way to go if the damage will cost less than $5,000 to repair. After you have fully documented your claim, repair the damage, keeping receipts for all work. Then file a claim in small claims court against the association. You can seek the advice of an attorney regarding your small claims case, but you cannot be represented by an attorney in small claims court.

Board Can Order Assessment Hike

Q: I live in a subdivision of a city and our area is incorporated with the secretary of state. Our covenants, conditions and restrictions state that two-thirds of the entire membership must approve an increase in our assessments. If a vote has not been taken, can the board legally increase the assessments? Can the board file a lien against our property if we do not pay the increase?

A: If your association is a common interest development as defined in Section 1351 and meets the criteria of Section 1352 of the California Civil Code, then the board has the authority to increase the assessments up to 20% of the prior year’s budget. This authority is granted in Civil Code Section 1366.

Section 1367 gives the association the authority to file liens to collect unpaid assessments, reasonable collection costs and attorney fees.

Check your local library’s legal reference section to find the Civil Code Sections 1350 to 1376 that apply to common interest developments or community associations.

Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers.

She selects questions of general interest for the column and regrets that she cannot respond to all questions received. Send questions to: Condo Q&A;, Box 5068, Thousand Oaks, CA 91360.