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Board is ignoring complaints of hazards

May 25, 2003|Stephen Glassman and Donie Vanitzian | Special to The Times

Question: Last summer we bought a townhouse in a 58-unit complex with a $165 monthly homeowners fee for maintenance of the grounds, pool, tennis court and other common expenses.

Before taking possession of our unit we noticed the pool area did not have any furniture or lifesaving equipment, and the Jacuzzi was not heated. The management company and board assured us these issues would be addressed before our purchase.

Nearly a year has passed since we bought. The Jacuzzi remains cold, and there is no pool furniture or lifesaving equipment. Also, lights are still out, and a piece of metal safety fence is broken and dangerously exposed to passersby. The county health inspector has since closed the pool because it is unsafe and poses health hazards to users.

We've sent registered letters to the management company informing it of these violations and reminding it of potential legal consequences. We have not received replies.

An amendment to the association's CC&Rs (covenants, conditions and restrictions) "prevents any direct contact with the board of directors." Homeowners cannot attend monthly meetings because there are none. The same board has been in power for more than two years and has only met once.

As owners we are concerned that these and other board actions constitute negligence. The potential for an injury or lawsuit will affect the value of all our properties.

We have no clue as to the state of our association's finances because no one returns our calls or acknowledges letters. How can we get the association to correct these violations, own up to its responsibility as a board to maintain our complex and let us see the books?

Answer: You should have received several documents before your purchase was finalized, including a copy of the most recent budget and the governing documents.

If the management company was acting as the agent for the board when it made those representations, the board is liable for fulfilling the promises. Any reliance on those promises that led you to purchase can form the basis of a suit for damages against those who made the representations. That may mean suing the association of which you are now a member.

Restricting owner contact with members of the board or association serves no useful purpose and may be enough to qualify as a breach of the board's fiduciary duty owed to all the homeowners. It may also be illegal under the Corporations Code, since the board of directors is responsible to the members of the association.

The delegation of duties to a management company may be outside the scope of its authority. The board is also obligated to review a current reconciliation of the association's operating accounts on at least a quarterly basis and, by law, that representation must be "adequate and correct."

Dangerous conditions on common property about which the board knows or should have known could form the basis for damages if anyone is injured on that property.

At a minimum, the association is obligated to hold one membership meeting a year. Failure to do so is an indicator that the board may be hiding something and is a violation of law. It would likely take a lawsuit to decide. A cheaper alternative is for the members to organize to vote this board out.

Actions taken by the board that would require a vote of the homeowners are, in legal terms, ultra vires, or beyond its legal power or authority. They can result in the board and possibly the entire association being liable and having to pay damages.

Under California's Davis-Stirling Act, those homeowners fed up with being treated like outsiders can begin the process of removing the board. Any homeowner is permitted to bring an action to enforce the covenants, conditions and restrictions and, if that homeowner prevails, get his attorney fees back.

In the long run, homeowners can only hope they have enough insurance to cover all the possible damages that can arise when an association board acts as yours does, and enough money in the bank to sustain them should a catastrophe occur.

The problems experienced in your association will continue until a majority of the homeowners decide to stand up for themselves.

Please send questions to P.O. Box 451278, Los Angeles, CA 90045 or e-mail NoExit@mindspring.com.

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