If a Board Fails to Act, Take It to the Next Step

Question: We live in a 25-unit common interest development near the beach in Southern California. Year after year, we request that the board and management company fix common area problems surrounding our home. They ignore us.

At considerable expense, which doesn’t seem to bother any of the board members, we were forced to hire attorneys to write the board telling them to fix the problems.

All of the attorneys we have hired throughout this ordeal have expressed their dismay and puzzlement as to why the homeowners association and management company are not fixing the problems.

Finally, an attorney friend told us to write a letter, telling the board we are writing in “anticipation of litigation.”

Still, the board and management company did nothing.

In a recent conversation with a board member, I was told that the reason they were doing nothing was because my correspondence said “anticipation of litigation” in it. They are making this impossible to get anything accomplished. What can we do to fix the problems?

Answer: A board’s ignorance of the law is no excuse for its actions or inactions. Your board has legal obligations under the Davis-Stirling Act, Civil Code section 1364(a), that says, “The association is responsible for repairing, replacing, or maintaining the common areas.”

If a lawsuit is necessary to force your board to adhere to its responsibilities, you first need to verify that wording similar to the Davis-Stirling Act is in your governing documents, such as your Covenants, Conditions and Restrictions, or CC&R.; If it is and your lawsuit against the board to force them to perform the obligations required of them under the CC&Rs; is successful, the court should award you attorney’s fees.

Your board needs to step back and recognize that homeowners in your development are so fed up that they are actually telling the board they are going to sue. It doesn’t get any clearer than that.

Unfortunately there are attorneys who advise boards to do nothing, instead advising a board to ignore the homeowner. Their reasoning is that the person is going to sue anyway, so let them.

What the board’s lawyers fail to say is that lawyers benefit in the event of a suit, because the insurance company or the association pays their fees.

They get paid regardless of the outcome within the common interest development.

This fee-based rather than resolution-based approach creates opposing factions among people who supposedly live in a community.

Interests can turn to getting even, not getting problems solved. The approach can encourage litigation and goad homeowners into suing.

Solving the problem would certainly be cheaper and less stressful than a time-consuming lawsuit, the impact of which could be increased premiums or possible policy cancellation.

Funds spent that are not covered by the insurance company would better be spent on repairing, replacing and maintaining your complex, or damage caused to homeowner units, which was the board’s duty to begin with.

Apparently writing your board has proven fruitless, yet you need to try one last time.

Send a copy of your letter to the board and to your state legislator, and request that your elected representatives enact laws that include penalties for boards that break the law.

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Stephen Glassman is a writer and an attorney specializing in corporate and business law. Donie Vanitzian, J.D., is a writer and arbitrator and manages commercial property. Send questions to: Common Interest Living, P.O. Box 451278, Los Angeles, CA 90045 or e-mail queries to [email protected].