Articles Posted in Maintenance and Repair

By David Swedelson, Partner at SwedelsonGottlieb, California Community Association Attorneys

good_neighbor_fences_-_Google_Search.pngYour community association prides itself on how beautiful and well maintained the common area is. But the owner of the neighboring apartment/condominium/home/property is from Planet “Who Cares”. The fence that borders your property is an eyesore, and the neighboring property owner refuses to talk to the board or management about the situation. Is there anything you can do? This situation is more common than you might think, and the answer is yes!

On January 1, 2014, the California Legislature updated Section 841 of the California Civil Code regarding “good neighbor” fences, a common fence dividing two properties. The original law, in place since the 1870s, simply provided that both owners were mutually responsible for common fences. As a practical matter, if your neighbor paid to put up a fence, you were obligated to reimburse your neighbor for one-half of the “reasonable cost” of that fence. If you paid to put up the fence, your neighbor had to reimburse you. As for how to agree on the cost of the fence and how to collect your half, the law was silent. You were on your own.

The good news is that the new law does address these issues, and with more specificity. The 2014 law, like the 1870s law, operates on the presumption that neighbors benefit equally from a common fence, and that the cost for building or fixing a common fence should be shared equally even if the fence is on the neighbor’s property. But the 2014 law doesn’t stop there. It goes into detail, outlining a step-by-step process for erecting or repairing a common fence, and explains exactly how to recover half of the cost. The law also lays out exceptions to the equal-benefit, equal-cost assumption.
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By David Swedelson, Partner and Community Association Attorney at SwedelsonGottlieb

balcony%20copy.jpgSince the inception of the Davis-Stirling Act in 1985, there has been confusion regarding owner vs. association responsibility for the repair or replacement of exclusive use common area. AB 968, legislation sponsored by the Educational Community for Homeowners (ECHO), signed into law by the Governor on September 18, 2014, brings us long-needed clarification. We strongly supported this legislation (surprisingly, as will be explained below, many others did not), as it clears up some of the ambiguities created by what was formerly Civil Code Section 1364, now Civil Code Section 4775.

Civil Code Section 4775 currently states that unless otherwise provided in the CC&Rs, a community association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area. The homeowner of each separate interest is responsible for maintaining their separate interest (their unit or home) and any exclusive use appurtenant (attached or next to) their separate interest.

So, while Civil Code Section 4775 has addressed who is responsible for the maintenance, repair, and replacement of the common area, this code section only dealt with the responsibility for maintenance of the exclusive use common area, or so that is how many interpreted the code section.
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By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

Los_Angeles_Broken_Sidewalks_-_Google_Search.pngAn article in the LA Times tells us that the City of Los Angeles is facing an interesting dilemma; one that we find is often faced by California community associations. The City’s sidewalks are in terrible shape, broken up by tree roots. The question is, who should pay the cost of the repairs? According to the article, “state law is ‘crystal-clear’ in leaving property owners responsible for fixing and maintaining their sidewalks.”

Case law also holds that if the owner of the property adjacent to the sidewalk has planted or is maintaining a street tree, even though the sidewalk is the responsibility of the City, the owner can be responsible for injuries suffered as a result of a trip and fall accident. See our prior blog post entitled “California Community Associations May Be Liable for Injuries Suffered in Trip and Fall Accidents on City Sidewalks.

The broken up sidewalks have generated a lot of personal injury trip and fall claims against the City from injured persons walking on the sidewalks. They have also generated claims by disabled individuals who argue that the broken up sidewalks violate their rights to public access.
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By SwedelsonGottlieb, Community Association Attorneys

bed_bugs_pictures_-_Google_Search.pngWhat exactly is a bedbug? Bedbugs are insects. They are reddish brown, oval and flat, about the size of an apple seed. Decades ago, bedbugs were eradicated from most developed nations using dichlorodiphenyltrichloroethane (commonly known as DDT) – a pesticide that has since been banned because it’s so toxic. There has been a resurgence of bedbugs in the United States in recent years as a result of increased international travel, changes in pest control practices, and insecticide resistance. And several of our condominium association clients have reported units infested with these little bugs.

Despite their small size, bedbugs are a problem. Bedbugs bite the exposed skin of sleeping humans to feed on their blood, and they often take refuge in clothes or luggage left nearby on the floor after feeding on their human hosts. During the day, bedbugs hide in the cracks and crevices of beds, box springs, headboards and bed frames, and they can also can be found under peeling paint and loose wallpaper, under carpeting near baseboards, in upholstered furniture seams, and under light switch plates or electrical outlets. Experts have stated that bedbugs don’t care if their environment is clean or dirty (all they need is a warm host and plenty of hiding places), and that otherwise immaculate homes and hotels can harbor bedbugs. In July of 2010, clothing retailers Hollister and Abercrombie & Fitch had to temporarily close their flagship stores in New York City to eliminate bedbug infestations, likely stemming from bedbugs being on the clothing of visitors to their stores.
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Blog post by David Swedelson, Condo Lawyer, HOA Attorney and head of SwedelsonGottlieb’s Litigation Team
firesafe.png

Over the years a number of our condo and homeowner association clients have suffered the loss of homes or units as a result of fires. Some of these fires resulted from smoking in bed, a couple of them resulted from propane tanks leaking or exploding, some from clogged dryer vents, bad appliances, and many from brush fires. In fact, I just recently completed a trial involving a dispute over the design of an owner’s proposed new home that the homeowner wanted to build after their original home was burned to the ground as result of a brush fire. That fire alone destroyed their home and significantly damaged eight others. Many of these fires could have been prevented.
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By David Swedelson, Condo Attorney, HOA Lawyer and Legal Expert at SwedelsonGottlieb

treedamage1.pngThere have been a number of articles written over the last few years regarding the fact that municipalities do not have the money or resources to repair sidewalks broken up by tree roots. There had been some programs in some California cities that would reimburse homeowners up to one half the cost of repairing sidewalks that have been damaged by tree roots. But as a result of the weakened economy, these programs are not funded, and there is no money to reimburse owners.

Many associations are concerned about injuries that may occur as a result of heavily damaged sidewalks adjacent to these associations’ common area. Community associations don’t like taking on responsibility for damage that they did not cause, especially when many associations have not increased assessments or maintenance fees and are really limping along financially as a result of the Great Recession.

Unfortunately, many associations are looking at potential liability for trip and fall injuries suffered as a result of the broken up sidewalks even if the association does not own the sidewalk or the trees that caused the concrete to become damaged.
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Blog Article by David Swedelson, SwedelsonGottlieb Senior Partner, Condo Lawyer and Community Association Attorney
Resulting in one of the most important common interest development cases decided by the California Supreme Court, Mrs. Gertrude Lamden disagreed with her homeowners association’s board’s decision to address a termite problem by spot treating the affected areas rather than tenting and fumigating the entire building.

Upon learning of a termite problem in the association’s common area, the board carefully investigated and considered its options, taking into account the expense, inconvenience to members, likelihood of effectiveness, and a number of other factors, and decided to spot treat the affected areas. After that failed to eradicate the termites, Mrs. Lamden sued the association, requesting a court order requiring that the association fumigate her building.
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By David Swedelson, California Condo Attorney and HOA Lawyer, Partner SwedelsonGottlieb, Community Association Attorneys

Many community associations continue to suffer from delinquent assessments; many owners are still living in their units or homes not having paid their lender/bank or their association assessments for 2 to 3 years. Many associations are not doing enough to collect those delinquent assessments and are leaving money on the table. At many associations, the senior foreclosed, and the associations have taken no action to collect believing that such efforts would be futile. Maybe yes, maybe no. We spoke about this new community association paradigm here.

There is another consequence of the Great Recession that will likely impact many California community associations in the future; many of these associations are deferring maintenance because they don’t have enough income to pay for the regular expenses, much less for extraordinary expenses such as painting. And many are not funding reserves!
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By David Swedelson, senior partner, SwedelsonGottlieb, California condo lawyer and HOA attorney

“Homeowner Associations Are Not Required to Create Reserve Accounts?” This was the title of a recent Los Angeles Times column on community association law written by two individuals who I do not believe are really community association legal experts (one is an attorney, and the other went to law school, so why the Times has them writing this column is not understood). Their lack of HOA legal expertise is evidenced by their inane and often incorrect responses to the questions they are responding to.

I often question if the questions are real, as in over 25 years of representing California community associations, I have never encountered or even heard about some of the fact situations that they claim they are responding to. Other times, I just chuckle and shake my head (literally), as I cannot believe their responses to the questions. Usually, they are very cynical, and typically they suggest that owners sue their condo or HOA association and its board. More often than not, I am concerned that owners at community associations are reading the incorrect information that they publish and are relying on the poor advice.
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(and why condominium associations should be responsible for waterproofing on balcony decks)

By David C. Swedelson, Condo Lawyer and HOA legal expert; Senior Partner at SwedelsonGottlieb
I know that many boards contemplate the idea of making owners responsible for the waterproofing on the balconies or decks in condominiums (and yes, generally the association is responsible for repairing or replacing what is considered common area waterproofing). Bad idea. The reality is that owners will not do what is required, and the leaks will damage the common area and other units. One association client learned this the hard way. And while the end result was good for the association and we consider this an excellent result, the road was rocky and stressful. And the association had to finance our fees and the costs.

It all started with that association amending and restating its Governing Documents (through another firm). As a part of that process, their former attorney suggested that they make the homeowners responsible for the maintenance, repair and replacement of the waterproofing on each homeowner’s exclusive use balcony decks. Many associations tell me they would like to see the homeowners responsible for the waterproofing, as they claim that the association does not want to have to save or expend the money for that work. However, in practice this is not a good idea.
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