Legal Question in Real Estate Law in California
During a rain storm water from a HOA maintained slope overflowed a retaining wall and mud got in my pool. Each of the previous two winters the samething would have happened, but i was lucky enough to spot the water building up and reported it before it was able to overflow the wall. 2 of the 3 times I have seen the water build up was on the weekend when maintenance workers are not around. The HOA won't pay, they say it's an act of god and the drain was overwhelmed. However, the drain is very powerful and if it's kept clear it can more than handle the water. I have video to demonstrate the power of the drain, as they unclogged it and I have emails reporting the issue twice in the past, where rainfall totals were less than this storm. A land investor is in control of the HOA, if it was a normal HOA situation I am sure I would not have this dispute. What do you think my odds are of winning in small claims court? Also, can I sue for loss of use of my pool? These are million dollar homes and my yard cost 130K. HOA dues are $181 per month. Oh, also since I threatened to sue I now see sand bags around the drain and see them using leaf blowers to clear out the V-ditch that is behind the retaining wall. To me this is further proof that they did not properly maintain the drain and v-ditches, which lead to the clog and flood. Also, we are talking about build up of 10's of thousands of gallons of water before it can overflow the wall...so this would take many hours to occur. There was enough water back there when this happened that a person could have swam under the water. Thanks for your help. - Matt
3 Answers from Attorneys
Based on your side of the story alone, and neither seeing the site nor hearing the full HOA version, I'd think your chances of prevailing in Small Claims Court is at least 50-50, probably better, but nowhere near 100%. Among things in your favor, I don't think the Act of God defense will work because the flooding is regular, frequent and results from manmade interferences with nature. Not so favorable is the somewhat unpredictible nature of small-claims judges. I think you'd be better off limiting any claim to the actual cost of repairs and cleanup; going for money damages for loss of use sounds a tad too aggressive.
Hey Matt:
I had similar problems with my v-ditch in a big rain in 2005. We live by MHS.
The HOA's insurance company gave me the same garbage about "Act of God". The thing about that defense is that the damages must have been "unforeseeable". If the damage that results is reasonably foreseeable based on prior knowledge and/or reasonable knowledge of what occurs when the v-ditch is not properly cleaned, then it's NOT an act of God! Here, the question arises as to whether the HOA had knowledge of the prior potential floods and/or should have known about the problem when the v-ditch is not regularly cleaned out.
In the case of our HOA, the landscape company although responsible for cleaning the slopes was not responsible, according to their contract with the HOA, with cleaning the v-ditches. After this flooding and the damage claims made by me and two other homeowners the HOA contracted with the existing landscape maintenance company to have them obligated to clean and maintain the v-ditches. The company charged a little more but at least they are now obligated to keep the v-ditches cleared out.
I don't know the amount of your damages but small claims is limited to a maximum of $7,500.
Let me know if you have any questions in this regard.
Caleb
email: [email protected]
There is a risk that the water accumulating near your home could cause greater damage in the form of slope or soil subsidence. You should not tolerate this condition continuing. Since you're aware of the condition, it is possible the statute of limitations could be running. You should consult a lawyer before it causes a huge amount of damage later, and you would be too late to file a lawsuit at that time. Contact us if you want to discuss. 213-572-0400.
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