Legal Question in Real Estate Law in California

There is a basic rule of law that one party's obligations are not discharged by the breach of the other party of their obligations. There are some notable exceptions, such as in the case of a breach of the implied warranty of habitability in Landlord/Tenant law, and where a breach constitutes a complete repudiation of the contract or failure of consideration. But your duty to pay your HOA dues is not cancelled by their failure to maintain and repair common areas. Your remedy is to sue the HOA not refuse to fulfill your obligations under the CC&R's I don't know who told you you cannot file a cross-complaint, but it won't offset your duty to pay what you owe. It will just force the HOA to do it's job if you win.

Now this isn't part of the answer to your question, exactly, but any lawyer looking at this situation is left to wonder 1) why you let this go for two years, and 2) where is your Condo Owners Insurance in all this? If you can't occupy your unit, aren't you getting loss of use payments from your personal insurance? Why aren't you paying your mortgage so that you are on the verge of foreclosure? It seems like you have not been dealing with this except by refusing to pay your dues. That's a sure fire way to get sued and lose. You need legal representation and to get pro-active. The USA legal system does not protect people who don't actively protect their own rights by bringing things before the courts in a timely manner.

I agree with Mr. McCormick and would add that after reading your question and before peeking at Mr. McCormick's answer, my immediate reactions were (1) where is the insurance company through all of this, and what has happened to the insurance proceeds; and (2) why didn't this family get pro-active in negotiating, mediating, arbitrating and/or bringing suit earlier, instead of letting problems compound over two years?

Why are you listening to the opposing side, (your enemy) and taking their word for what your legal rights are? You need to hire an attorney who will tell you a very different story - that you do have legal rights. You may call my office for a free consultation.

Daniel Bakondi, Esq. [email protected] 415-450-0424

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