Legal Question in Real Estate Law in California

I have a water intrusion into my garage which I reported to the property management company for my HOA four months ago and which caused considerable damage to my garage. I have been unable to get the homeowners' association to take action on this, even though I have gone to the board meeting three times about it. They say they will fix it, but they don't. They have not committed to repair my property damage but say they will consider it if the water intrusion is their responsibility. They say they must do a water test to determine this.

I had a similar occurence in 2005. They did not repair the defect at that time, just tacked up the plastic liner in the planter. I had considerable damage at that time which they finally repaired. It took them five months.

The water intrusion is almost certainly coming from a planter box that abuts my garage. There is a known construction defect causing water intrusions in subterranean garage walls, and the homeowners' association settled with the builder and has funds in reserve to repair the defects.

I have repeatedly requested a meet and confer with my homeowners' association board of directors. The CC&Rs mandate that such a request by a homeowner must be granted. I have received no response.

So I stopped paying my dues in protest. Now I have a collection letter.... You know the drill; they'll put a lien on the property and/or foreclose if I don't pay.

I live in San Jose, California. The property in question is a condominium.

What are my options?

Thanks,

Helen


Asked on 10/24/10, 5:35 am

2 Answers from Attorneys

Not paying your HOA dues in protest is like not paying rent in protest, it is far more likely to come back and bite you than get any positive results. There is a fundamental principal in law that the failure of one party to fulfill their obligations to another does not relieve the second party from their obligations. If the second party wishes to enforce the obligations they themselves must fulfill theirs. There are, of course, a great many exceptions, but I don't think your situation is one of them. Your options are to drop the issue, or escallate the issue by bringing in legal counsel or suing the HOA yourself. In either case, however, you need to pay your HOA dues.

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Answered on 10/29/10, 9:56 am
Michael Isaac Shokrian Law Offices of Michael Isaac Shokrian, APLC

Simply withholding HOA fees is very risky. You have an option - assuming you have provided sufficient written notice to the HOA regarding the problems you mentioned, and assuming nothing to the contrary exists in your HOA/CCRs - of putting the HOA dues you owe into a neutral/third party "escrow" type account and then informing the HOA that you have done so (with sufficient proof, account # etc...), so that the HOA will know you have paid, but they won't have access to the fees/dues until the dispute is resolved. You will get their attention and protect yourself. If they still fail to respond (you should give them a specific deadline to respond/address your issues), you will have no choice but to file legal action against the HOA for breach and negligence. they won't be able to ignore a lawsuit.

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Answered on 10/29/10, 10:52 am


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