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Quake damage left unrepaired

January 19, 2003|Stephen Glassman and Donie Vanitzian Special to The Times | Special to The Times

Question: I live in a common-interest development in a region sometimes called "earthquake valley." The area is prone to liquefaction and soil abnormalities, and there are a variety of faults. The last earthquake damaged more than half of our units and the area in general suffered a lot of damage.

Common area walls, cement and garage slab foundations cracked. These cracks damaged individual homes to the extent owners could no longer park their cars in their garages. Yet the board refuses to take any action to correct these problems.

Engineers and structural experts confirmed that many units had shifted and were damaged. They recommended "reinforcing" all of the end units because they take the brunt of quake movement.

Each board that comes and goes ignores this recommendation, saying it is not important. The other problems with the existing walls are inadequate drainage, which the board also refuses to correct, along with mold and algae growth.

The present board's concentration is focused on outward appearances -- painting, planting flowers and the installation of new block walls -- none of which has anything to do with reinforcing the buildings themselves. The board members say that they are protecting "our investment" and that their actions will "increase property values."

The probability of block walls withstanding an earthquake in this area is not high. How can anyone knock some sense into these people?

Answer: Knocking sense into your board may take another earthquake. "Increasing property values" is a worthless catch phrase frequently unsupported by reliable evidence.

Your property values would probably increase without your board doing anything more than routine maintenance and gardening, which is its prime responsibility according to the law. There is nothing in the Davis-Stirling Act that defines nebulous terms such as "increased value" nor does it make "increasing property values" part of the board's duties or function.

Should another earthquake further damage your buildings because your board failed to take the necessary precautions, the "value" of your property may be reduced to zero. If the association's earthquake insurance includes a sizable deductible, it could swallow up any equity in your property.

The board's priorities and approach to its legal obligations to repair, replace and maintain the facility may expose its members and all homeowners to liability from a buyer whose purchase came without disclosures of the documented problems.

Since your board has notice of the problems and fails to take appropriate action, a court may find that it has failed to discharge its fiduciary and legal duty to the owners.

Common area problems affecting the stability of homeowner units should take priority over any cosmetic fixes. It only takes one sale to fail because a buyer is made aware of problems in the complex and then all the efforts of the board to protect the supposed investment by implementing a cosmetic face lift instead of substantive repairs are for naught.

Boards continue to do what homeowners let them do and, in this case, it means concentrating on cosmetics instead of structural defects. If that decision required a special assessment, it also meant a vote by the owners. If the majority of owners felt block walls were more important than reinforcing structures, then they are left with the consequences.

Hiding defects by planting flowers, putting on a new coat of paint or building block walls only leads to potentially greater damages and lawsuits should the end units suffer damage. You may be able to "knock some sense" into your board only when their own units suffer damage.

Most CC&Rs and the Davis-Stirling Act contain provisions allowing the governing documents to be enforced by either the board or a homeowner. If it is felt that the association is not meeting its legal obligation to repair and maintain the complex, individuals have the right to sue the association to force it to meet those obligations.

If the homeowner is successful in having the court order the board to act to repair and maintain the complex, the court must also award the homeowner attorney's fees in addition to costs. This is one of the rare circumstances where a homeowner can actually force a board to pay attorney's fees if it fails in its obligations.

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Stephen Glassman and Donie Vanitzian are the coauthors of "Villa Appalling! Destroying the Myth of Affordable Community Living" (Villa Appalling Publishing, 2002). Please send questions to: P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to noexit@mindspring.com.

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