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Demand repairs, keep a written record and prepare to sue

August 09, 2009|Stephen Glassman and Donie Vanitzian

Question: I live in a development of less than 50 town homes. The driveway to my garage has begun to rise on one side and is now at least 4 inches above my garage floor, damaging my garage door. The door is now bowed and no longer fully closes on one side.

I tried for more than a year and a half to get a resolution from my homeowners association, and finally the board directed me to a garage door company.

I paid the company $85 for it to tell me the problem was the driveway.

The board took another three months to have a contractor tell me that the board would pay to dig up and lay only half of my driveway, even though the driveway color would differ from the original.

The board says that they can't afford to do the entire driveway and that because I owned the garage door, it's my responsibility.

They refuse to put anything in writing. I feel that the board should reimburse my $85. What should I do?

Answer: The board's refusal to put anything in writing does not get them off the hook.

Repair and maintenance of the common areas, as defined in the association's covenants, conditions and restrictions -- CC&Rs -- are the responsibility of the association, not the individual titleholders.

The costs of those repairs might be covered by the regular monthly assessments each homeowner pays to the association or by a special assessment earmarked specifically for that purpose.

It is not an obligation that the board can pass along to the homeowner merely by declaration.

Often, titleholders are specifically prohibited from doing anything to the common areas, including but not limited to repairs.

However, when the association fails in its obligations to repair and maintain those areas, titleholders may have other remedies.

You may be able to recover your $85 in a small claims court action against the association as an expense that should have been incurred by the board rather than you.

Send the board an invoice showing the amount owed as $85. If the board does not respond within 10 days, file a complaint in small claims court asking for the invoiced amount.

Your communications with the association stating that something is wrong with the driveway put them on notice of a potentially dangerous condition.

Should someone be injured, perhaps by tripping over a raised or uneven driveway, the association would be liable for those injuries.

Damage to the garage door, caused by the rising of the driveway, would be a repair that the association is required to undertake.

Because the garage door damage appears to have been caused by the failure of the association to fulfill its obligation to repair the driveway, you may also be able to recover costs for that damage.

Any titleholder can sue the association to enforce the CC&Rs, and typically attorney fees are awarded to the prevailing party.

Make a written demand on your association's board of directors to repair the driveway and the ensuing damage to your garage door.

Mention the dangerous conditions caused by the driveway. Remind the board of their obligations as set forth in your CC&Rs and the law.

If the board responds by telephone, send them a letter reiterating what they told you. Take pictures and keep copies of all correspondence with the association and a telephone log to show the court, in case a lawsuit is necessary.

If the association ignores its obligations, be prepared to sue to compel the association to make the repairs.

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Send questions to P.O. Box 11843, Marina del Rey, CA 90295 or e-mail noexit@mindspring.com.

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