Water Damage – Lubin Pham + Caplin LLP

Is Your HOA Responsible for Your Water Damage?

No matter what type of home you own (whether it’s a single-family house, condominium, townhome, etc.), if you live in an HOA, your HOA has maintenance responsibilities. Your HOA may be responsible for maintaining the roof, the pipes, the windows, or foundation. When it fails to do so, water can enter your property and cause catastrophic damage. Water intrusion can destroy your walls, your floors, and your furniture. The resulting mold growth can damage your health.

We’ve fought countless HOAs over water intrusion. Let us help you protect your most important assets: your home and your health. Whether you are ready to engage us or not, here are 5 steps you need to take when you suffer water damage to protect your rights as a homeowner.

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1. Determine Your HOA’s Maintenance Responsibilities.

What is the HOA Responsible for Maintaining? The short answer is: “It depends.”

HOAs have different maintenance obligations depending on the types of development they manage. But typically, HOAs have a duty to maintain the “common area.”

To make matters more complicated, the rights and obligations of homeowners and their HOA’s depend on a set of Governing Documents, called the CC&Rs. These documents establish who is responsible for maintaining what. And for establishing who is liable for what.

So, the first step in evaluating whether your HOA is responsible is thoroughly reading your CC&Rs. That’s never easy. CC&Rs are typically long, archaic, dense legal documents. They can have confusing provisions. They can have inconsistent provisions. They can have illegal provisions.

The experienced homeowners’ attorneys at Lubin Pham + Caplin LLP can help you identify whether your HOA is responsible for your water damage.

But then what?

2. Gather Evidence.

Having water damage alone isn’t enough to prove that your HOA is liable. You have to prove that the water damage was a result of the HOA’s failure to comply with its maintenance obligations. Sometimes that’s easy to do. If your HOA had to maintain the roof and the roof collapsed, your HOA is probably responsible.

But other times, it isn’t that clear. Sometimes you have to retain a leak detection expert. Picking the right expert is critical. The expert will not only have to find the source of the leak, he’ll have to issue a detailed report. He and his methods will also have to hold up to scrutiny from the HOA and, potentially, a judge or jury.

Don’t let the HOA, the property manager, or an HOA’s handyman / contractor tell you that it’s your fault. It is their job to protect the HOA from liability. In fact, they may not know whether the HOA is responsible, even if they’re acting in good faith.

Ensure that you obtain the right team to best protect your property and your health. At Lubin Pham + Caplin LLP, we keep a book of trusted and experienced experts—experts with trial experience. Let us help you choose the right one to gather your evidence.

3. Calculate Your Damages.

Once you determine that the HOA had a duty to maintain, and that it failed that duty to maintain, you need to determine your damages.

Sometimes calculating your damages is pretty straight forward. If the water damage is new and small, you may be able to call a few contractors and get bids. The cost of repair is a good starting place to measure your damages.

Sometimes it’s a lot more complicated. The leak may have been ongoing for a long time before you discovered it. It may have caused massive mold growth, infecting all of the wood framing in the home. The mold may have caused you health problems. A raw sewage leak can contaminate the wood, the drywall, the paint, and all of your household belongings. Property destruction may force you to move out.

Even if your HOA admits responsibility, how, when, or even if it fulfills its responsibilities may inflict even more damage on you and your family. It may delay. It may make inadequate repairs, hire an unlicensed contractor, or just paint over mold. It may even do nothing, neglecting your home outright.

In all of those cases, it takes an experienced attorney to review your case and give you an estimate of the types of damages you can recover and what evidence you’ll need to prove your damages to the HOA or to a judge or jury.

4. Initiate Legal Action.

Depending on the extent of your damage, you may have different legal options. Which option you choose depends on your specific circumstances. You have four options: A demand letter, IDR, ADR, and a lawsuit.

Option 1: The easiest thing to do, is to write your HOA a simple demand letter. Unfortunately, it’s also often the least effective thing to do. The HOA typically passes your letter to its property management company, who passes the letter to the HOA’s attorney. The HOA’s attorney’s job is to protect the HOA by denying responsibility and telling you that it’s all your fault.

Option 2: Under the Davis-Stirling Act, your HOA must provide a mechanism for Informal Dispute Resolution, or “IDR.” The law requires HOAs to provide a “fair, reasonable, expeditious procedure” for resolving disputes between itself and its members. Essentially, both you and the HOA can ask each other for an informal meeting to discuss and try to convince the HOA to remediate the water damage. You’re allowed to have your attorney there. The HOA can have its attorney there too. While you can refuse the HOA’s request, the HOA cannot refuse your request. If you settle, the settlement has to be in writing and signed by both you and your HOA. Because IDR is, by definition, informal, it is not always the most effective course of action. This is especially true if the water damage is severe.

Option 3: In addition to IDR, the law provides for Alternative Dispute Resolution or “ADR”. In many cases, the law requires you and the HOA to try ADR before filing a water intrusion lawsuit against your HOA. And failing to engage in ADR may mean an automatic loss.

Mediation is one type of ADR in California. In mediation, there is no judge and no jury. Instead, it is a formal meeting at which the parties share their side of the story and try to reach a settlement. It is typically more effective than IDR because a neutral third-party helps the parties evaluate their positions and aids them in coming to a resolution. Most importantly, participating in ADR creates the opportunity to recover your attorneys’ fees against the HOA if you have to proceed to litigation.
Unlike IDR, the law has special requirements on how to start the ADR process. If you don’t do it right, the HOA has no obligation to go to ADR, and you may lose your right to recover attorneys’ fees or, even worse, automatically lose your case in court.

Option 4: Finally, the law allows you to initiate a lawsuit against your HOA. The process of prosecuting or defending a lawsuit is called litigation, and it’s what you see on T.V. and in movies. It involves depositions, written discovery, motions, oral argument, and may ultimately culminate in a trial with a judge and jury. It’s expensive and it’s time-consuming. But sometimes you have to. Sometimes the water damage is so severe, your HOA leaves you with no other option.

If you have to file a lawsuit, don’t do it yourself. No reasonable lawyer would ever tell you to do so. In fact, most lawyers wouldn’t even represent themselves. Litigation is complicated and time-consuming. And the failure to precisely follow the rules and deadlines can have dire consequences. In other words, it’s a full-time job. It’s our job.

Pick the Right Option: If you need help determining what legal option is right for you, we can help you decide. We’ll explain the costs and benefits of each option and guide you to an educated decision.

5. Choose The Right Attorney To Protect Your Rights.

There are many lawyers that claim to know California HOA law. But very few are dedicated to representing homeowners. Most lawyers that practice HOA law work for the HOA. You’ve probably heard of them: Tinnelly Law, Swedelson Gottleib, Wolf Rifkin, Beaumont Tashjian, Whitney Petchul, Berding Weil, etc. We know them. We’ve gone against them. We know their tactics.

Many lawyers also claim to be specialists in water intrusion cases. While that may be the case, they probably aren’t experienced in dealing with HOAs and their lawyers. We know both. We’ve helped countless homeowners recover for water damage against HOAs in California. Contact us today to find out how we can protect you.