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Homeowner should not pay for common-area repair

March 15, 2009|Stephen Glassman and Donie Vanitzian

Question: My homeowners association replaced a pipe that extended from the common area to my exclusive-use patio area. Working on the pipe in the common area was the only practical and cheapest possible way of doing the job.

I did not cause the common-area plumbing problem, and it was the board's decision to replace the pipe in the manner it did. Working from inside would have necessitated breaking a lot of concrete under my patio wall, which would have destroyed the existing patio.

The board is now demanding that I pay about $4,500 billed to the association for replacing that common-area pipe. Other plumbers that were contacted have written affidavits saying that the job could be done only from the outside. This was a common-area problem, and the board picked the plumbers but has invoiced me.

I've been warned that if I do not pay, the board will begin fining me, then sue me, then put a lien on my home. I have copies of the minutes in which the board voted to take the action and that indicate its bogus reason for billing me. I demanded arbitration, but the board never replied. What do I do?

Answer: A board's flawed reasoning is not a valid excuse for forcing you to pay. Under California Civil Code Section 1364, your board has a legal obligation to repair the common-area pipe at association expense even though it was under your patio wall.

Even if there is no reference to your situation in the association's covenants, conditions and restrictions (CC&Rs), repairs to major systems on or under the common area are the association's responsibility, not the individual homeowner's. If the governing documents were violated, any suit against the board would require it to reimburse the homeowner for attorney's fees as well as damages.

You were wise to obtain copies of the minutes documenting board votes to take action and indicating its reasons for billing you. Those documents have evidentiary value and can be used to make your case against the board's wrongful actions. Having demanded arbitration, you have complied with the requirements set forth in the Davis-Stirling Act for filing a lawsuit in Superior Court, should you choose to.

Before the association can record any lien, it must comply with requirements set forth in Civil Code Section 1367.1. If the board has not complied with the law, no lien can be filed and no foreclosure can take place. Any lien improperly placed must be promptly removed at the association's expense.

Your board needs to understand that it works for the homeowners and must adhere to the law, both statutory and as in the governing documents. Because the amount is under $7,500, you could consider filing a Small Claims Court action against the board if you are unable to get it to reverse course in a timely fashion.

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

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