What is Loss Assessment?

In condominium communities, the exterior of buildings, certain building components, and common areas are typically owned by all the condominium owners as a group.  In the event of earthquake damage to such property, the association may, in accordance with its bylaws, impose an assessment against all members of the association to pay for exterior or structural repairs.

This coverage is unique to condominium owners, in that if damage from an earthquake occurs and the losses are not fully covered by the association’s master insurance policy, Loss-Assessment coverage may help you pay for your share of certain assessments the association may impose on all property owners in your condominium development.

A partial list of assessments not covered are those made to pay for the repair of nonresidential structures, awnings, patio coverings, pools, spas, club houses, artistic features, or separate parking structures.

What does Loss-Assessment coverage cover?

If your condominium owners association imposes an assessment to repair damage caused by an earthquake, Loss-Assessment coverage may help pay your share of certain assessments.

You may buy CEA Loss-Assessment coverage even if your condominium owners association does not have a “master” earthquake policy in force.

Today, an increasing number of condominium homeowner associations are either buying earthquake coverage with high deductibles or electing not to purchase earthquake insurance at all.

As a result, there is a greater likelihood that homeowner associations will use unit-owner assessments to repair damage following an earthquake.  This results in an increased probability of loss under a CEA policy with Loss-Assessment coverage-requiring the CEA to adjust premiums for this coverage over time.

  • You should know that your HOA community carries insurance to minimize exposure to financial loss in the event of an earthquake.
  • However, depending on the severity of damage, the rebuilding cost assessed to each Owner could be between as much as $51,709
  • While an earthquake is not preventable, you can protect yourself against this potential financial impact.
  • A $50,000 OR $75,000 Earthquake Loss Assessment Policy will close or reduce the gap between what the HOA policy covers and the actual cost to rebuild.
  • For an additional premium, you can include coverage for Personal Property, Loss of Use and Real Property (such as counters, cabinets, and drywall).

Please don’t delay in asking your Insurance Agent to review your CC&Rs and advise you on the coverage you need. You do not want to find yourself under-insured or over-insured (wasting money) in the event of an earthquake.

 

Writing to the Point

Are you tired of short, direct, and simple sentences that seem to take forever to fill up a page?  Are you paid by the word?  In either case, you can benefit by increasing the number of words in your sentences and the bulk of your writing.  Also, it is easy if you just follow nine simple steps, many of which you may already know and practice.

To show how easily you can apply these steps, I will start with the following ludicrously short and simple sentence and increase its verbiage step by step.

More night jobs would keep youths off the streets.

Step 1: Begin to lengthen your statement by referring to studies, even if you are not aware of any studies.  After all, who really cares?  Also, if anyone challenges you, you can protect yourself by weaseling (see Step 5).

Studies have found that more night jobs would keep youths off the streets.

Step 2: Replace simple words like more, jobs, night, youths, and streets with multiple syllable words of
Latin or Greek origin.

Studies have found that additional nocturnal employment would keep adolescents off thoroughfares.

Step 3: Use sophisticated verbs, the vaguer, the better.  The verb found is much too clear and simple, whereas indicate, develop, and identify are excellent multi-purpose verbs with so many meanings that you can use them in almost any context to mean almost anything.  What precisely does indicate mean, anyway?  If you use identify or indicate, you can further lengthen your sentence by attaching the fact that to it.

Studies have identified the fact that additional nocturnal employment would keep adolescents off thoroughfares.

Step 4: Rely on such adjectives as available, applicable, and appropriate to lengthen sentences without changing or adding any meaning.  If possible, use various, one of the most meaningless of all the meaningless modifiers.

Various available applicable studies have identified the fact that additional appropriate nocturnal employment would keep adolescents off thoroughfares.

Step 5: Use weasel words as often as possible.  A number of is particularly useful because it can refer to any number at all: -9, 4.78, 0, 5 billion, you name it.  (For more effective weaseling, replace wills and woulds with cans and coulds.)

A number of various available applicable studies have generally identified the fact that additional appropriate nocturnal employment could usually keep adolescents off thoroughfares.

Step 6: Sprinkle your sentences with classic redundancies.

A number of various available applicable studies have generally identified the fact that additional appropriate nocturnal employment could usually keep juvenile adolescents off thoroughfares.

Step 7: Add meaningless “it is” and “there is/are” expressions, not only to lengthen your sentences but also to give them a scholarly ring.

There is no escaping the fact that it is considered very important to note that a number of various available applicable studies have generally identified the fact that additional appropriate nocturnal employment could usually keep juvenile adolescents off thoroughfares.

Step 8: For the precision that all good writing deserves, use legalisms, the more redundant, the better.

There is no escaping the fact that it is considered very important to note that a number of various available applicable studies have generally identified the fact that additional appropriate nocturnal employment could usually keep juvenile adolescents off thoroughfares, including but not limited to the time prior to midnight on weeknights and/or 2 a.m. on weekends.

Step 9: Use foreign words and phrases to lengthen and enliven your sentences.  Especially apt are Latinisms and other obscurities whose meanings have long been forgotten if they were ever known.

There is no escaping the fact that it is considered very important to note that a number of various available applicable studies ipso facto have generally identified the fact that additional appropriate nocturnal employment could usually keep juvenile adolescents off thoroughfares during the night hours, including but not limited to the time prior to midnight on weeknights and/or 2 a.m. on weekends.

So there you have it.  Following these nine steps, I have managed in no time to increase the number of words in my sentence nearly seven fold, well above the level of incomprehensibility.  Also, best of all, I have accomplished this feat with little or no change in meaning.

Board of Directors

Most homeowners associations in California are formed as non-profit corporations.  A corporation is governed by and acts through its Board of Directors.  (See, Corporations Code Section 7210.)  The Board’s rights and powers as set forth in its governing documents are subject to the Corporations Code and the Davis-Stirling Common Interest Development Act.  (See, Corporations Code Section 7210 & Civil Code Section 1363.)  In what can only be described as a little knowledge is not always a good thing, confusion often arises as to the validity of the Board’s action when homeowner members perceive that a Board’s decision was not made in accordance with Robert’s Rules of Order.  Assuming that the Board had statutory authority to make such a decision, the action is not invalidated simply because of a purported breach of parliamentary etiquette.

Contrary to popular belief, “[t]he law does not require formal procedures during board meetings.  Nevertheless, board meetings are likely to be more productive and less frustrating for participants, if formal procedures are adopted and followed.”  (See, B.E. Bickel, 2012 Condominium Bluebook, p. 44.)  For this reason, many homeowner association Bylaws provide for the use of Robert’s Rules of Order, or some other form of parliamentary procedure, to be used during Board Meetings.  Unfortunately, confusion as to the scope and application of Robert’s Rules of Order sometimes presents an obstacle to the expeditious conduct of business.

For example, there is a common misperception that, pursuant to Robert’s Rules of Order, the President of the Association cannot vote on an action unless it is necessary to break a tie.  As pointed out on The Official Robert’s Rules of Order Web Site, “Frequently Asked Questions,” “it is not true that the president can vote only to break a tie.  If the president is a member of the voting body, he or she has exactly the same rights and privileges as all other members have, including the right to make motions, to speak in debate, and to vote on all questions.”  (Emphasis added.)

In a homeowners association, the President of the Corporation is typically a member of the Board of Directors.  Pursuant to Corporations Code Section 7211(c), “[e]ach director shall have one vote on each matter presented to the board of directors for action.”  As the President is part of the voting body, he or she can make motions, speak in debate, and vote on all questions unless the Bylaws expressly provide otherwise.

Not surprisingly, there is no authority that allows a member to repudiate an action of the Board that was made within the scope of its discretion vested by its governing documents, the Corporations Code, or the Civil Code simply by asserting a breach of Robert’s Rules of Order. “The law respects form less than substance.”  (See Civil Code Section 3528.)   The use of parliamentary procedure is intended to facilitate the orderly conduct of a Board meeting, as opposed to frustrate the operation of the Association.  In raising and ruling on parliamentary objections, common sense and fair play should be overriding factors.  If the Board has authority to act, and the appropriate number of directors as dictated by the governing documents approve the resolution, the action of the Board should be upheld.

Property Damage Claims

Property damage claims are legal claims that involve damage to one’s property as opposed to one’s person.’ They do not, generally, encompass physical injuries although in some cases, such as auto negligence lawsuits, property damage and personal injuries can be intertwined. There are several types of property damage, the two most common being damage to real property and damage to cars.

Property damage claims very frequently involve insurance companies, either one’s own or that of the person causing damage. The ability to deal and negotiate with insurance companies, adjusters and claims attorneys is an essential part of any property damage case. Finding and hiring an experienced who understands property damage issues can be the difference between being reimbursed for damages or simply being turned away, forced to absorb costs that are better attributed to someone else.

Damage to Real Property

A property damage claim involving real property means that one’s land or home sustained damage. When the local kids hit a baseball through your window, you have sustained damage to real property. When a storm knocks a tree onto your roof, when someone drives over your lawn, when the neighbor’s dog digs up your flower beds…you’ve sustained damage to real property. Damage to real property also encompasses acts of vandalism, such as graffiti, eggings and other pranks. These types of incidents, along with innumerable other examples, can be the basis for both formal and informal property damage claims, regardless of the damager’s intent.

Recovering money subsequent to sustaining damage to real property is usually a multi-step process and varies greatly depending on the circumstances. First and foremost, you need to know whom to recover from. Most acts of vandalism cannot be attributed to a specific person, and weather damage or other types of home damage (a flooded basement from a hot water tank failure, for example) are just freak occurrences that can’t generally be pinned on a specific individual or company. However, recovery is still a possibility because homeowner’s insurance may cover all or part of the damages sustained.

Examples of Real Property Damage and Recovery

If the neighbor’s son knocks a baseball through your window causing a couple of hundred dollars in damage, your first step would be to attempt to get the neighbor to pay for the damage. If the neighbor refuses (and you are not concerned about damaging neighborhood relations), you are within your rights to file suit to recover damages for the broken window. Small claims courts and local district courts are the most common venues for these types of incidents. Small claims cases, which usually have an upper claim limit of a couple of thousand dollars, and district court cases are generally cases involving less than $10,000.00. Lawyers are generally prohibited from participating in small claims matters but can be a valuable resource when preparing the attendant paperwork.

Another example of a common property damage claim is contractor negligence. For example, if you hire a roofing contractor to put on a new roof and their dumpster cracks your stamped concrete driveway, you have a legitimate property damage claim arising from the contractor’s negligence. Assuming that the contractor was insured and their insurance company refuses to reimburse you, you can file a suit in district or circuit court seeking to recover the cost of a new driveway in addition to the costs of bringing the suit. The contractor had a duty not to negligently damage your property; he breached that duty by placing an overfilled dumpster on your expensive driveway, which caused it to crack. You have met the four requirements necessary to recover.

Auto Accident Property Damage

Auto accident property damage can be a bit more complicated depending on the laws of your state. Whether your state is a “fault” or “no-fault” state can dramatically affect how—and how much—you can recover for damage to your car arising from an auto accident.

Property Damage in Fault States

In a “fault” state, you can immediately seek compensation from the person or driver that damaged your car. So if you are in a fender bender that wasn’t your fault, no one was hurt, and your car was totaled, you would be well within your rights to attempt to settle with or sue the other driver or his insurance company. While you may very well have your own auto insurance, “fault” states generally place responsibility on the at-fault party.

Property Damage in No-Fault States

In a “no-fault” state, you would first attempt to recover your damages from your own insurance company. No-fault laws are designed to limit auto negligence litigation, and they do so by requiring every driver to carry their own auto insurance to use in case of an accident. Leaving bodily injuries out of the discussion, generally, the only way you can recover from the at-fault party for vehicle damage in a no-fault state is through mini-tort provisions.

Most no-fault laws have a mini-tort provision limiting the amount one can collect from an at-fault driver in compensation for vehicle damage. The amount usually does not exceed $500.00. Any damage above and beyond the mini-tort threshold would need to be recovered from your own insurance company, pursuant to no-fault laws. As a general proposition, mini-tort payments are paid out with little or no resistance from insurance companies. As long as the damage and attribution of fault are documented, and the mini-tort amount is appropriately requested, you can expect to receive your money. There are exceptions to every rule, however, and no-fault lawyers will be able to assist you in recovering what you are owed.

Insurance and Property Damage

Insurance, or the absence of insurance, is a major factor in nearly every property damage claim. Whether it is homeowner’s insurance, boat insurance, auto insurance or some general umbrella policy, most people are insured against property damage. So the first—and often most important—step in any property damage case is to determine what coverage is available from whom. Lawyers can be extremely helpful in obtaining coverage and policy information from involved parties.

Once the insurance companies are identified, they usually send their own “independent” investigators to assess the damage and place a monetary value on the resolution of your claim. Whether the damage is major or minor and whether it is your insurance company or that of another entity, always assume that they do not want to pay you anything. Insurance companies make money by collecting premiums, not paying claims. If you have sustained major property damage and there is a large amount of money at stake, seek the assistance of an attorney. Professional help can mean the difference between early settlement and having to file a lawsuit to collect.

Once the insurance company has finished its investigation, which can take days or months depending on the claim, they will either pay or deny the claim. Payment does not always mean that you receive the full amount of money necessary to cover your damages, so it is not uncommon for insurance companies and claimants to negotiate a settlement that is acceptable to both sides.

Property Damage Lawsuits and Attorneys

If you are the victim of property damage, it is always in your best interest to retain an attorney to assist with your claim. Regardless of whether you intend to file a lawsuit, a professional, well-informed attorney experienced in property damage matters can mean the difference between recovery and eating a loss. Attorneys speak the same language as insurance adjusters, corporate risk managers, and claims investigators. A good property damage attorney will be able to leverage your situation into an acceptable settlement, and in the absence of a settlement, will be able to take the appropriate legal steps to ensure your right to recovery is protected.

 

Prevent Water Intrusion Through Good Inspection and Maintenance Programs

Protect Your Property from Water Damage

Water may be essential to life, but, as a destructive force, water can diminish the value of your home or building.  Homes as well as commercial buildings can suffer water damage that results in increased maintenance costs, a decrease in the value of the property, lowered productivity, and potential liability associated with a decline in indoor air quality.  The best way to protect against this potential loss is to ensure that the building components which enclose the structure, known as the building envelope, are water-resistant.  Also, you will want to ensure that manufacturing processes, if present, do not allow excess water to accumulate.  Finally, make sure that the plumbing and ventilation systems, which can be quite complicated in buildings, operate efficiently and are well-maintained. This article provides some basic steps for identifying and eliminating potentially damaging excess moisture.

Identify and Repair All Leaks and Cracks

The following are common building-related sources of water intrusion:

  • Windows and doors:Check for leaks around your windows, storefront systems, and doors.
  • Roof:Improper drainage systems and roof sloping reduce roof life and become a primary source of moisture intrusion.  Leaks are also common around vents for exhaust or plumbing, rooftop air-conditioning units, or other specialized equipment.
  • Foundation and exterior walls:Seal any cracks and holes in exterior walls, joints, and foundations.  These often develop as a naturally occurring byproduct of differential soil settlement.
  • PlumbingCheck for leaking plumbing fixtures, dripping pipes (including fire sprinkler systems), clogged drains (both interior and exterior), defective water drainage systems and damaged manufacturing equipment.
  • Ventilation, heating, and air conditioning (HVAC) systems:Numerous types, some very sophisticated, are a crucial component to maintaining a healthy, comfortable work environment. They are comprised of a number of components (including chilled water piping and condensation drains) that can directly contribute to excessive moisture in the work environment.  Also, in humid climates, one of the functions of the system is to reduce the ambient air moisture level (relative humidity) throughout the building. An improperly operating HVAC system will not perform this function.

Prevent Water Intrusion Through Good Inspection and Maintenance Programs

  • Flashings and sealants:Flashing, which is typically a thin metal strip found around doors, windows, and roofs, are designed to prevent water intrusion in spaces where two building materials come together.  Sealants and caulking are specifically applied to prevent moisture intrusion at building joints. Both must be maintained and in good condition.
  • Vents:All vents should have appropriate hoods, exhaust to the exterior, and be in good working order.
  • Review the use of manufacturing equipmentthat may include water for processing or cooling. Ensure wastewater drains adequately away, with no spillage. Check for condensation around hot or cold materials or heat-transfer equipment.
  • HVACsystems are much more complicated in commercial  Check for leakage in supply and return water lines, pumps, air handlers and other components.  Drain lines should be clean and clear of obstructions. Ductwork should be insulated to prevent condensation on exterior surfaces.
  • Humidity:Except in specialized facilities, the relative humidity in your building should be between 30% and 50%.  Condensation on windows, wet stains on walls and ceilings, and musty smells are signs that relative humidity may be high.  If you are concerned about the humidity level in your building, consult with a mechanical engineer, contractor, or air-conditioning repair company to determine if your HVAC system is properly sized and in good working order. A mechanical engineer should be consulted when renovations to interior spaces take place.
  • Moist areas:Regularly clean off, then dry all surfaces where moisture frequently collects.
  • Expansion joints:Expansion joints are materials between bricks, pipes and other building materials that absorb movement.  If expansion joints are not in good condition, water intrusion can occur.

Protection from Water Damage

  • Interior finish materials:Replace drywall, plaster, carpet and stained or water-damaged ceiling tiles.  These are not only good evidence of a moisture intrusion problem but can lead to deterioration of the work environment, if they remain over time.
  • Exterior Walls:Exterior walls are generally comprised of a number of materials combined into a wall assembly.  When properly designed and constructed, the assembly is the first line of defense between water and the interior of your building.  It is essential that they are maintained properly (including regular refinishing or resealing with the correct materials).
  • Storage Areas:Storage areas should be kept clean.  Allow air to circulate to prevent potential moisture accumulation.

Act Quickly if Water Intrusion Occurs

Label shut-off valves so that the water supply can be easily closed in the event of a plumbing leak. If water intrusion does occur, you can minimize the damage by addressing the problem quickly and thoroughly. Immediately remove standing water and all moist materials, and consult with a building professional.  Should your building become damaged by a catastrophic event, such as fire, flood, or storm, take appropriate action to prevent further water damage, once it is safe to do so. This may include boarding up damaged windows, covering a damaged roof with plastic sheeting, or removing wet materials and supplies.  Fast action on your part will help minimize the time and expense for repairs, resulting in a faster recovery.

 

The Issue of Foreseeability and A Proprietor’s Responsibility for the Unanticipated Criminal Acts Of Others By McLain & Merritt, P.C.

INTRODUCTION

Another type of tort litigation, about which much has been written recently, involves torts and criminal acts committed by third-parties while on the property of another. This particular paper will deal with the responsibility of landowners or proprietors for these unanticipated torts and criminal acts of third parties. While this area of the law developed some predictability over the past ten years, things changed as a result of the Georgia Supreme Court’s Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339(1997). The decision in Sturbridge was of particular significance to the extent that it lowered the standard of foreseeability for landowners by expanding what is meant by a “substantially similar prior occurrence.”

GENERAL PRINCIPLES

Although all premises liability cases are factually different, certain legal principles are generally applicable. For example, “The mere ownership of land or buildings does not render one liable for injuries sustained by a person who has entered thereon or therein; the owner is not an insurer of such persons, even when he is inviting them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground for liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” Emory University v. Duncan, 182 Ga. App. 326, 328, 355 S.E.2d 446 (1987). See also, Cole v. Cracker Barrel, 210 Ga. App. 488, 436 S.E.2d 488 (1983).

THIRD-PARTY TORTS AND CRIMINAL ACTS

These cases typically involve invitees who have been attacked or assaulted, or otherwise injured, by the criminal act of a third-party while on the property of another. Quite often, convenience stores, apartment complexes, shopping malls, etc., are involved. O.C.G.A. § 51-3-1 sets the standard. “Where an owner or occupier or land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such person for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” As with other types of premises liability cases, as already mentioned, “The mere ownership of land or buildings does not render one liable for injuries sustained by a person who has entered thereon or therein; the owner is not an insurer of such persons, even when he is inviting them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon his premises. The true ground for liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to others coming upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” Cole v. Cracker Barrel, 210 Ga. App. 488, 436 S.E.2d 488 (1993).

One of the most common defenses asserted in cases of this type is that the tortious conduct for which damages are sought was not the responsibility of the owner/landlord, but was, instead, the result of the unanticipated misconduct of a third person for whom the owner/landlord is not responsible.Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 877, 392 S.E.2d 535 (1990). This defense is not unlimited and can be defeated where a plaintiff shows that the owner/landlord had, or should have had, a reasonable apprehension that the presence of third persons created a dangerous condition for invitees on his property. It is on this issue that the decision in Sturbridge has been significant.

It is the duty of an owner/landlord to protect invitees from injury caused by the misconduct of third persons if there is a reasonable apprehension of danger from the conduct of third persons or if the injury could have been prevented by the owner/landlord through the exercise of ordinary care and diligence. A showing that the owner/landlord had, or should have had, prior knowledge that the presence of third persons created a dangerous condition for patrons on his premises is typically necessary to show the existence of a duty on the part of the owner to provide preventative security measures. Absent such a duty, the random, unforeseeable misconduct (or criminal act) of a third person is considered to be the sole proximate cause of the injury and insulates the owner/landlord from liability. The duty owed to invitees involves only a duty to see that the premises are reasonably safe, not a duty to absolutely protect the invitees. To find liability in the case of intervening misconduct or a criminal act, the owner/landlord must have had reasonable grounds to believe that the particular criminal act was likely to occur. Donaldson v. Olympic Health Spa, 175 Ga. App. 258, 261, 333 S.E.2d 98 (1985).

A common contention made by plaintiffs in these cases is that the owner/landlord knew, or should have known, about a particular dangerous or defective condition because of the prior happening of a substantially similar occurrence on his property. Whether a prior substantially similar occurrence can be shown, is determined by the particular facts of each case. It is not required that the offenses be identical. All that is required is that the prior incident is sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated incident.

“While the relevance of other occurrences is ordinarily within the sound discretion of the court, ‘it is necessary that the condition of the things compared be substantially similar.’ (Cit. omitted). Without a showing of substantial similarity, the evidence is irrelevant as a matter of law, and there is nothing upon which the Court’s discretion can operate.”1 Stated another way, “[N]otice of one defect or of one fact is not notice of another wholly unconnected defect or fact, even though the two may be similar in nature.”2 In reviewing cases of this nature, Georgia courts at first held that crimes against property were not substantially similar to crimes against persons and that miscellaneous criminal offenses, such as loitering, drinking, and minor physical altercations were not always substantially similar to violent attacks on patrons. One example of these holdings was McCoy v. Gay where the Georgia Court of Appeals held that an armed robbery during the early morning hours in a Holiday Inn parking lot, which purportedly did not have sufficient lighting, was not substantially similar to a purse snatching, which had previously occurred as the victims started up a large open stairway on the outside of the motel leading to a balcony which provided access to the motel’s rooms. The fact that both crimes occurred in close proximity to guest facilities was not enough.

One of the earlier, and more significant, cases in which the issue of “substantial similarity” was Savannah College of Art & Design, Inc. v. Roe, 261 Ga. 764, 409 S.E.2d 848 (1991). InSavannah College of Art, the Georgia Supreme Court held that “Evidence that the college is located in an urban environment and that it had received reports of two instances of ‘peeping Toms’ at the dormitory, of the removal from the dorm of a vagrant and an intoxicated person, of a student surprising a burglar, and of the occurrence of petty thefts is irrelevant because none of the incidence is substantially similar to the sexual assaults which are the basis of this litigation.” Ibid. at 765. In other words, crimes against property were held not to be substantially similar to crimes against persons, i.e., violent assaults or rapes. The Court went on to state that “In light of the dearth of evidence of the occurrence of prior substantially similar incidence, the College was entitled to summary judgment because there was no evidence sufficient to create a factual issue as to whether the College knew or should have known that its dormitory residents were at risk of a violent criminal sexual assault.” Ibid.at 766.

Cases after Savannah College of Art continued the discussion of substantially similar prior occurrences, and continued the distinction between crimes against property and crimes against persons. These cases generally held that the issue of substantial similarity (“Foreseeability”) was dependent upon the facts of each individual case. No decision ever required that the offenses be identical. All that was required was that the prior incident is sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated incident. Grandma’s Biscuits, Inc. v. Baisden, 192 Ga. App. 816, 817, 386 S.E.2d 415 (1989); Tolbert v. Captain Joe Seafood, 170 Ga. App. 28, 316 S.E.2d 11 (1984); Arnold v. Athens Newspapers, 173 Ga. App. at 737; Gay v. Franchise Enterprises, Inc., 203 Ga. App. 870 at 871-872, 418 S.E.2d 135 (1992); and Reid v. Augusta-Richmond County Coliseum Authority, 203 Ga. App. 235 (416 S.E.2d 776) (1992).

Some cases after Savannah College of Art seemed to favor landowners. For example, in Hunter v. Rouse-Atlanta, Inc., 211 Ga. App. 131, 438 S.E.2d 188 (1993), the Georgia Court of Appeals held that a series of incidents in which youth gangs had become intoxicated, gotten into altercations, and harassed customers, were not substantially similar to a shooting death of an Underground Atlanta customer, who was shot during an armed confrontation between two youth gangs. Subsequent decisions also continued to hold that crimes against property were not substantially similar to crimes against persons and that miscellaneous criminal offenses, loitering, drinking, and altercations were not always significantly similar to “violent” attacks on patrons. Gay v. Franchise Enterprises, Inc., 203 Ga. App. at 871-872; and Grandma’s Biscuits, Inc. v. Baisden, 192 Ga. App. at 817.

Another decision in which the Georgia Court of Appeals held that a crime against property was not substantially similar to a crime against a person was Arnold v. Athens Newspapers, Inc. Specifically, it was held in Arnold that three prior burglaries at an Arby’s restaurant, the most recent of which had occurred several years earlier, were not substantially similar to a sexual assault upon a newspaper delivery person where the Arby’s restaurant was used a drop-off point by the Athens-Banner Herald for its carriers. 173 Ga. App. at 736. See also, Tolbert v. Captain Joe’s Seafood, 170 Ga. App. at 28; and Grandma’s Biscuits v. Baisden, 192 Ga. App. At 817. In Grandma’s Biscuits, Inc. v. Baisden, the Georgia Court of Appeals held that prior unarmed physical assaults were not substantially similar to a shooting in which the plaintiff was injured. 192 Ga. App. at 817. The underlying facts were that a Grandma’s Biscuits patron sought damages for injuries he sustained when he was shot, purportedly without provocation or apparent motive, by an unknown assailant. Grandma’s Biscuits contended that the assailant’s conduct was an unforeseen criminal act for which it could not be held responsible since no shootings or other violent crimes had previously occurred in its restaurant. A police computer printout, which showed that between 1981 and 1984 various other criminal offenses had been reported at the restaurant, was not sufficient to establish liability. None of the other criminal occurrences on which the plaintiff relied, involved a shooting.

Likewise, Gay v. Franchise Enterprises, Inc. held that prior “(a)ltercations, loitering and other breaches of the peace” at a Hardee’s restaurant were not substantially similar to a situation in which a customer was beaten and injured while attempting to leave the restaurant. The customer and his wife, after getting up from their table, were blocked from leaving the restaurant by another customer, a fight broke out after the plaintiff shoved the other customer, and the plaintiff was beaten by several other young men who joined the fight. 203 Ga. App. at 871. See also, Modesitt v. Waffle House, 213 Ga. App. 381, 444 S.E.2d 412 (1994); and Woods v. Kim, 207 Ga. App. 910, 429 S.E.2d 262 (1993), where the Georgia Court of Appeals held that the fact that a store was located in a high crime area and that numerous crimes had occurred on the premises, was not sufficient to establish liability to a plaintiff, who, as he left the store, was confronted by an assailant armed with a sawed off shotgun, and shot. No other prior criminal acts were found to be substantially similar to the shooting. In its decision, the Court found that the proprietor did not know of the dangerous condition giving rise to the attack, and that “(k)nowledge of the conditions would be necessary in order to show the existence of even an initial duty on the part of the (appellee) to provide preventive security measures.” Ibid at 911.

In an apparent reaction to the Savannah College of Art decision, the Georgia Court of Appeals reviewed the issues of substantial similarity and foreseeability in Matt v. Days Inn of America, 212 Ga. App. 792, 443 S.E.2d 290 (1994). The underlying evidence was that there had been 82 crimes committed at the Days Inn in the three years before the attack on Richard Matt. Police records showed that one robbery occurred in a guest room, and that the other 81 crimes were committed in the parking lot, including a purse snatching and a robbery by force. The plaintiffs also introduced evidence from three other airport hotels located within a one-quarter mile radius of the Days Inn, which showed that at one hotel alone there had been 184 parking lot crimes, including five armed robberies, one strong arm robbery, two rapes, ten assaults, and one kidnapping. Another nearby hotel had 257 parking lot crimes, including four armed robberies, one strong arm robbery, one rape, and 26 assaults. A third hotel had two assaults and one kidnapping. Also, the security guard at the Days Inn testified that he did not feel safe patrolling the premises and that sometime prior to the shooting of Richard Matt, he had requested permission to carry a weapon, wear a bullet proof vest, and carry a portable telephone.

The issue before the Court in Matt was to determine whether or not the robbery by force three years earlier was substantially similar to the armed robbery in which Richard Matt was shot. The court prefaced its holding by stating, “substantially similar does not mean identical, and it is not a question whether a weapon was used, but whether the prior crimes should have put an ordinarily prudent person on notice that the hotel’s guests were facing increased risk. All that is required is that the prior incident be sufficient to attract the hotel’s attention in the dangerous condition which resulted in the litigated incident.” Ibid. at 794. The Court then held that the record of criminal activity in the parking lots of nearby hotels, including serious crimes against persons, when coupled with the record of criminal activity in its own parking lot, was sufficient to create a genuine issue of material fact on whether Days Inn was put on notice that the criminal conduct against its guests was foreseeable.

The Court also found questions of fact concerning whether or not the security measures implemented by Days Inn were adequate or whether they had been performed in a negligent manner. For example, the Court questioned (1) whether or not the visible presence of a security guard in the parking lot (as was required by Days own security procedures but not following this case) might have prevented the robberies; (2) whether or not Days Inn was negligent in that its unarmed security guard remained safely in his car while allowing Richard Matt to cross the parking lot; (3) whether or not Days Inn was negligent in not maintaining an armed security guard force given the dangers to be found in its parking lot; and (4) whether or not Days Inn was negligent in not installing a security gate that could have prevented a drive through robbery attempt. See also, Wallace v. Boys Clubs of Albany, 211 Ga. App. 534, 536, 439 S.E.2d 746 (1993), where the Court stated in a footnote that the decision in Savannah College of Art & Design v. Roe, did not absolutely hold that foreseeability could only be established by showing a prior substantially criminal act. “An absolute requirement of this nature would create the equivalent of a ‘one free bite rule’ for premises liability, even if the landowner otherwise knew that the danger existed. Evidence of a prior substantially similar act is one way to establish notice and foreseeability, and in most cases it will be the only possible way to do so. It is conceivable, however, that a danger could be so obvious that an issue for a jury’s determination could exist regarding notice or foreseeability despite the absence of a prior similar incident on those premises.”

Despite these decisions, the Georgia Supreme Court felt compelled in Sturbridge Partners, Ltd. v. Walker, to revisit the issue of foreseeability. Again, the Court held that “in determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the Court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question . . . while the prior criminal activity must be substantially similar to the particular crime in question that does not mean identical. . . what is required is that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident.” Ibid. at 786. The Court then went on to hold that three prior burglaries which had occurred at the defendant’s apartments were substantially similar to the occurrence being litigated to get the plaintiff to a jury on the issue of foreseeability. The facts being litigated involved a plaintiff, who was raped and sodomized in her apartment at approximately 12:30 a.m. The defendant had moved for summary judgment, asserting that there had been no prior rapes or other violent sex crimes on its property, and as a consequence, the rape and sodomization of the plaintiff was not reasonably foreseeable. The defendant relied on the decision in Savannah College of Art & Design v. Roe, for the proposition that a landlord’s knowledge of prior criminal acts against property cannot establish the foreseeability of a brutal sex crime as a matter of law. The Supreme Court rejected this analysis and stated that “such a restrictive and inflexible approach does not square with common sense or tort law, and represents a significant departure from the person of this Court.” Ibid. The Court then concluded by stating that the defendant (Sturbridge) had actual knowledge of two of three prior burglaries and that although the burglars were committed when the apartments were vacant, it was reasonable to anticipate an authorized entry might occur while an apartment was occupied and personal harm to the tenant might result.

More recently, Georgia appellate courts have followed the trend started with Matt v. Days Inn and then accelerated with. Sturbridge Partners, Ltd. v. Walker. See, McNeal v. Days Inn of America, 230 Ga. App. 786, 498 S.E.2d 294 (1998) cert. denied where the Court of Appeals held that several criminal acts in the Days Inn parking lot, including the arrest of several persons for a violent melee which had begun in a nearby housing project, were substantially similar to the assault and robbery of the plaintiffs, who were walking back to the Days Inn from a nearby Shoney’s Restaurant after dinner.

On this same issue of “substantial similarity,” the fact that a proprietor knows that one of its customers was loud and boisterous has been held not to constitute evidence that the proprietor knew that the customer was aggressive or threatening. WD Enterprises, Inc. v. Barton, 218 Ga. App. 857, 463 S.E.2d 529 cert. denied (1995). Likewise, the mere fact that the incident occurred in a bar did not make it foreseeable. Nor did the fact that the bar gave training to its employees about how to deal with intoxicated customers, or that a waitress had refused to serve a particular customer alcohol, imply that the proprietor had notice of the customer’s aggressiveness.

Even before the recent decision in Sturbridge, the defense of “substantial similarity” could not be taken too far. “[I]n order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen some injury would result from his act or omission, and consequences of a generally injurious nature might result.” Bayshore Co. v. Pruitt, 175 Ga. App. 679, 680, 334 S.E.2d 213 (1985). In other words, it is not necessary that prior identical injuries or attacks have occurred if it can be shown that the proprietor was otherwise made aware of the particular defective or dangerous condition which created an opportunity for the plaintiff to be injured. For example, prior burglaries could be argued to create a notice of defective locks, windows, etc., and create liability where a tenant was raped, so long as entry was gained by the same defective condition demonstrated by earlier burglaries. cf, Warner v. Moore, 133 Ga. App. 175, 178, 210 S.E.2d 350 (1974); and Demarest v. Moore, 201 Ga. App. 90, 92, 410 S.E.2d 191 (1991).

One case that seems to have anticipated the result in Sturbridge, was Bayshore Co. v. Pruitt, 175 Ga. App. 679, 334 S.E.2d 213 (1985). In this case, a plaintiff who resided in a second story apartment, the sliding door of which was not equipped with a Charlie bar, was attacked after an intruder was able to gain entry into her apartment by prying the sliding glass door open. In reviewing an objection to plaintiff’s tender of evidence concerning 17 prior criminal incidences that had occurred at the apartment complex during the three years prior to her attack, the Court stated that “Admissibility of these incidences not precluded solely because they all occurred on ground level apartments or involved crimes against property. ‘(I)n order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen some injury would result from his act or omission, in that consequences of a generally injurious nature might result.” Bayshore Co. v. Pruitt, 175 Ga. App. at 680. The key factor is knowledge, whether actual or constructive, of the dangerous condition which leads to the injury, and not the nature of the injury itself.

While an owner/landlord has a duty to exercise ordinary care for the safety of invitees, he is not the insurer of his invitee’s safety. The owner/landlord is only bound to exercise ordinary care to protect invitees from unreasonable risks of harm. Collins v. Sheperd, 212 Ga. App. 54, 56, 441 S.E.2d 458 (1991); and Knudson v. Lenny’s, 202 Ga. App. 85, 87, 413 S.E.2d 258 (1991). Likewise, “an owner/landlord does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care, and taking some measures does not ordinarily constitute evidence that further measures might be required.”

Another issue often discussed is whether or not an owner/landlord has an affirmative duty to provide security. This decision is a thankless one. It is “damned if you do, and damned if you do not.” Lau’s Corp. v. Haskins, 261 Ga. 491, 493, 405 S.E.2d 474 (1991). The starting point is to realize that other than the duty of care owed by an owner/landlord to exercise reasonable care to protect invitees, there is generally no affirmative duty to provide security. Camelot Club Condo Assn. v. Bonner, 207 Ga. App. 634, 428 S.E.2d 625 (1993). Likewise, there is no affirmative duty that owners/landlords post signs warning of a “generalized risk of crime.” Lau’s Corp. v. Haskins, 261 Ga. at 493. However, once an owner/landlord decides to provide security, or is forced by the happening of criminal occurrences, to provide security, he must do so in a non-negligent manner. “We recognize that if a defendant undertakes to do more for the benefit of another person than the law requires, he may be liable if he negligently performs that undertaking. (Cites omitted). Such negligence does not, however, eliminate the need to determine whether or not an intervening criminal act was reasonably foreseeable.” Shell Oil v. Diehel, 205 Ga. App. 367, 368, 422 S.E.2d 63 (1992). Where an owner/landlord, who has undertaken to provide security, is alleged to have failed to use reasonable care in carrying out the undertaking, a plaintiff cannot recover unless he can show either a detrimental reliance or an increased risk of harm. Copperwood v. Auld, 175 Ga. App. 694, 334 S.E.2d 22 (1985). Nor should it be overlooked that the owner/landlord is only bound to exercise ordinary care to protect invitees from unreasonable risks of harm. Lau’s Corp. v. Haskins, 261 Ga. at 492. “An owner/landlord does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care, and taking some measures does not ordinarily constitute evidence that further measures might be required. Collins v. Sheperd, 212 Ga. App. at 56. On occasion, an owner/landlord, or his employee may witness the attack or assault for which damages are sought. In such cases, the owner/landlord and his employees have a duty to come to the aid of the victim. Shell Oil Co. v. Diehel, 205 Ga. App. at 368. This duty on the part of the owner/landlord and his employees, to come to the aid of an invitee is even stronger where it is shown that the employees’ duties included looking out for the safety of the (apartment) premises and residents. Cooperwood v. Auld, 175 Ga. App. at 694. Where, however, the attack and resulting injury for which damages are sought happens suddenly and without warning, and neither the defendant owner/landlord nor his employees can, by the exercise of ordinary care, discover and prevent the injury, there may be no recovery. A landlord’s obligation to come to the aid of an invitee who is in danger, or is being attacked by a third party, can be satisfied by calling the police. Gay v. Franchise Enterprise, 203 Ga. App. at 871; and Modesitt v. Waffle House, 213 Ga. App. at 383.

Quite often in these cases, plaintiffs ask whether or not an owner/proprietor has investigated the history of his property for criminal occurrences as part of the discovery conducted after a lawsuit has been filed. More often than not, the owner/proprietor has not investigated the history of his property for criminal occurrences and has not obtained copies of police reports for crimes conducted in the general area. While on its face this may appear damaging to the owner/proprietor, there is no authority in Georgia imposing a duty upon an owner/proprietor to investigate police department records to determine whether or not criminal activities have occurred on his property. See, SunTrust Banks, Inc. v. Killebrew, 266 Ga.109, 464 S.E.2d 207 (1995). To establish knowledge on the part of an owner/proprietor, it is necessary for a plaintiff to show that the owner/proprietor or one of his employees, had knowledge of prior criminal occurrences on the property. See, Millan v. Residence Inn by Marriott, 226 Ga. App. 826, 487 S.E.2d 431 (1997).

Defendants, on occasion, attempt to rely on the plaintiffs’ comparative negligence or assumption of the risk in third-party assault cases. This can be very dangerous from a jury standpoint, and more often than not offers very limited benefit. When using comparative negligence, etc., as an affirmative defense in assault cases, defense counsel has to be very careful not to appear to be beating up on a plaintiff who has already been assaulted, raped, etc.

While comparative negligence and assumption of the risk are commonly asserted as defenses in slip and fall cases, they are not nearly as effective where security issues are involved. Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 158, 342 S.E.2d 468 (1986). The rationale for the equal knowledge defense is a presumption that a plaintiff, knowing of a particular danger, can, by the exercise of ordinary care for his own safety, avoid the consequences of the dangerous condition or the defendant’s negligence. However, the plaintiff’s equal knowledge will not bar recovery where he can show that he was attacked, injured, whatever while using ordinary care to avoid the alleged dangerous condition. Clark v. Carla Gay Dress Co., 178 Ga. App. at 160. For example, when the conduct of persons on the premises is such that the owner/landlord from either actual or constructive knowledge should reasonably apprehend danger to his invitee/tenants, it is the owner/landlord’s duty to interfere to prevent injury, and the failure to interfere to prevent injury, at least where such opportunity exists, may constitute negligence. “When the alleged breach of the provider’s duty to keep the premises safe is based on its negligent failure to protect the invitee from consequences of the acts of the third party which the invitee himself was powerless to prevent by ordinary care, it is of no benefit to ponder whether the invitee knew of the incipient danger, and it would be illogical to excuse the proprietor’s negligence merely because the plaintiff invitee was aware of a potential peril he could not escape.”

One new development on the issue of foreseeability, which is of some interest, is whether or not an owner/proprietor is responsible for injuries, etc., is caused by a drive-by shooting. The case was Hillcrest Foods, Inc. v. Kiritsy, 227 Ga. App. 554, 489 S.E.2d 547 (1997). In this particular case, plaintiff was injured when he was shot by an occupant of a passing car while leaving a Waffle House restaurant. The plaintiff was the unintended victim of the shooter. The shooter had actually intended to shoot his wife, who was a waitress at the restaurant. After acknowledging that a landowner has an obligation to keep the approaches to his property safe, the Court of Appeals held that this obligation did not extend to automobiles passing by the owner’s property. “The premises owner’s duty to keep the approaches safe does not generally extend to the busy public thoroughfare on which the premises is located, where the owner has no legal right to control such thoroughfare.” 227 Ga. App. at 557.

The Court of Appeals in Kiritsy also stated that a drive-by shooting is a totally different type crime than situations in which all of the actions constituting the crime occur on the defendant’s property. “In this drive-by shooting, the perpetrator was not even on the defendant’s property, but rather was traveling on a busy public thoroughfare. It is difficult to imagine what effective action Hillcrest could reasonably have taken which could have prevented a drive-by shooting even had there been a prior such event.” Despite testimony from the plaintiff’s security expert that a security guard would have been a deterrent, the Court of Appeals held that a drive-by shooting is such a transitory act that it can be carried out at any time and place where the defendant happens to be. Lastly, because of an absence of prior substantially similar events, the Court of Appeals held that the shooting of the plaintiff was not foreseeable.

CONCLUSION

As should be obvious by now, this particular area of the law, and especially the issue of what constitutes a substantially similar prior event, is especially fact sensitive and will continue to be so for some time. This was made even more obvious by the Georgia Supreme Court’s decision in Sturbridge Partners, Ltd. v. Walker, where the Court pretty much undid the seemingly established concept that crimes against property are not substantially similar to crimes against persons. Sturbridge was not, however, the first case to doubt the wisdom of the decision reached in Savannah College of Art & Design v. Roe.

 

How to Determine Maintenance Responsibility in HOAs

This is one of the most frequently asked questions involving community associations. It can come up at 2 a.m. after a dishwasher flood has damaged four units; when a homeowners association is re-roofing a building and wants to demolish people’s decks to gain roof access; when an owner’s uninsured contractor makes a hole in a pipe and causes a flood; or when mold is found as a result of leaks in common areas and owners’ failure to ventilate units properly.

The question has no easy answers and usually generates heated emotions. Here are some general principles that may help you sort out the answer.

What Do the Governing Documents Provide?

The first place to look is in the HOA’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs). The most helpful provisions will usually be the following:

Definitions – Is the area in question common area, exclusive use common area or a separate interest? (In a condominium, the separate interest is a unit. In a planned unit development, it is the lot and the residence.)

Division of Property – This section often explains who owns and maintains various areas of the development.

Powers and Duties of the Association – See what the CC&Rs say about the HOA’s maintenance responsibilities.

Owner Maintenance Responsibilities – See what it says about the owner’s maintenance responsibilities.

Reviewing these provisions will answer a high percentage of questions about who must pay for various items. If your CC&Rs are unclear about specific areas, this should be addressed when you revise your governing documents. The attorneys who prepare the revisions usually don’t know nearly as much about your building as you do; so be sure to bring any ambiguities about this subject to the attention of the attorneys who are preparing the revisions.

Try Looking at Civil Code Section 4775

After you have looked at your governing documents, the next step is to check Civil Code Section 4775. That code section is part of the Davis-Stirling Act, and it currently states:

Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.

This is one of the few provisions of the Davis-Stirling Act that does not prevail over contradictory provisions of the CC&Rs. However, if the CC&Rs do not “otherwise provide,” then Civil Code Section 4775 controls, except as discussed later in this article.

A bill was signed by Governor Brown in September of 2014 that will significantly alter Civil Code Section 4775. While the new law will not go into effect until January 1, 2017, it is important that your HOA be aware of the coming changes to prepare their CC&Rs to accommodate the law. Look to ECHO to provide tools and material to best help your HOA through the process.

Read more about the changes to Civil Code Section 4775 

How to Determine Common Areas and Exclusive Use Common Areas

How do you figure out what is a common area, what is exclusive use common area and what is a separate interest? First, look at your documents. If that does not help, review Civil Code Sections 4075-4190.

Civil Code Section 4185 provides that a separate interest in a condominium is a unit as described with detailed boundaries in the condominium plan (Civil Code Section 4125). In a planned unit development, a separate interest means “a separately owned lot, parcel, area or space.”

Civil Code Section 4185 goes on to say, “Unless the declaration or condominium plan, if any exists, otherwise provides, if walls, floors or ceilings are designated as boundaries of a separate interest, the interior surfaces of the perimeter walls, floors, ceilings, windows, doors, and outlets located within the separate interest are part of the separate interest and any other portions of the walls, floors, or ceilings are part of the common area.”

Thus the surfaces of walls, floors, etc., are separate interest but, unless the documents say something else, the sheetrock, subfloor, etc., are common areas.

Learn more about designating maintenance responsibility for condominiums and planned unit developments

Another very helpful provision is found in Civil Code Section 4145, which defines exclusive use common area as follows: “A portion of the common areas designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests and which is or will be appurtenant to the separate interest or interests. Unless the declaration otherwise provides, any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, door frames, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common areas allocated exclusively to that separate interest” (emphasis added).

The bottom line is that unless the CC&Rs say something else, the owners are responsible for maintaining the exclusive use common area and unless the CC&Rs say something different, the items listed in  Civil Code Section 4145 are all exclusive use common areas.

Damage Caused by an Individual

The above principles are modified by the common law of negligence and, sometimes, by other CC&R provisions. Under the common law, everyone has a “duty” to act reasonably to avoid foreseeable risk of harm to other people. The failure to do this is negligence. If someone’s negligence causes property damage, wrongful death, bodily injury, etc., the negligent person is responsible for the consequences.

Thus, even though the separate interest is usually supposed to be maintained by an owner, the rule is usually different if the homeowners association was supposed to maintain the roof, a common area, but did so negligently; and, as a result, the roof leaked and damaged the separate interest. In that case, it is up to the HOA to fix the damage to the owner’s separate interest and personal property.

This rule does not always help, however. What if an owner’s dishwasher leaks and causes a flood? Can you prove the owner was negligent? Alternatively, did the dishwasher leak all of a sudden, with no warning, in which case maybe the owner was not negligent, after all? Fortunately, such damage is often covered by insurance!

Insurance Considerations for HOAs

The CC&Rs usually require a community association to purchase insurance for the common areas. The community association will purchase “property insurance,” which covers the common areas if they are damaged by an insured peril, such as a fire or windstorm. The HOA will also purchase liability insurance, which will cover damage caused by the homeowners association’s negligence. Many times, damage to the common area will be covered by one or both of these policies. Most policies define common area in the same way it is defined in the CC&Rs. However, HOAs should have a written policy, or a CC&R provision, setting forth who pays the deductible in various circumstances. Usually, if the HOA was negligent, or if no one was negligent, the association pays the deductible. If the damage originated in an owner’s unit, then often, the owner is asked to pay the deductible, whether or not the owner was negligent.

Insurance does not cover all possible damage, however. What happens if an owner does not have liability insurance; he hires an uninsured contractor to do work in his unit; the contractor whacks a common area water pipe and causes a flood, and the flood damages the separate interests? The homeowners association’s property policy will not cover the separate interests. The HOA’s liability policy will not cover it either—the association did nothing negligent! The owner who hired the contractor is liable, but if the damage is hundreds of thousands of dollars—which can happen, neither he nor the uninsured contractor can afford to pay. Sometimes the individuals whose separate interests are damaged are underinsured. This can result in owners, who are innocent victims being displaced for months, having all their property destroyed, with no good source of obtaining payment! For this reason, although it is hard to enforce, many homeowners associations amend their CC&Rs to require all owners to purchase liability insurance! Others at least strongly “urge” owners to do so.

Damage Done for the Good of the Community

Sometimes CC&Rs do not address the issues that are presented when a community association must destroy or damage individually owned property for the common good. For example, perhaps there are exclusive use decks that prevent the HOA from accessing the roof membrane. When it is time to re-roof the building, the association has to demolish the decks. Who pays?

The HOA may take the position that, because the CC&Rs and Civil Code Section 4775 says that the owner of the separate interest must maintain the exclusive use common area decks, the owner must pay.

The owner will say there was nothing wrong with the deck; it had to be demolished to re-roof the building, and the cost is part of the association’s cost of maintaining common area.

Many courts have made analogies between homeowners associations and mini-governments. Under this analysis, we can conclude that the association, in demolishing the decks, is doing something like what a government does when it takes privately owned property for a public purpose. The homeowners association, like the government, must compensate the property owner for the taking. However, if the deck was nearly worn out, the association should pay only for the deck’s remaining useful life, not for a brand-new deck.

Changing the CC&Rs to Reallocate Maintenance Responsibility

Sometimes, HOAs change the allocation of responsibilities by amending the CC&Rs. This may or may not be a good idea.

Sometimes, the original CC&Rs required owners to maintain particular components. If some owners do not do this in a timely manner, it can damage other people’s property values. Sometimes, the HOA can achieve economies of scale by replacing all decks at the same time; it would cost a lot more if each owner replaced only one deck. It may be particularly appropriate for an association to assume maintenance responsibilities when it is impractical for individual owners to maintain a component. How reasonable is it to expect individual owners to maintain, repair and replace windows on a multi-story building? Each owner has to scaffold the building to replace one window! That makes no sense. If an association is going to assume maintenance of components, be sure to reserve for the new component.

When an area is inaccessible, it is often easier to have the owner maintain it. However, sometimes, associations with financial problems trying to solve them by shifting responsibility for components to individuals. This is not always wise; it can lower property values because not all owners have pride of ownership, and fixing each component individually loses all ability to get economies of scale.

Summary

Sometimes, figuring out who pays for what in a community association is a big headache, and the answer makes everyone unhappy. The best ways to avoid these problems are the following:

  1. Amend your CC&Rs to make the solutions to these problems as clear as possible.
  2. Require or encourage each owner to obtain his own liability insurance and adequate levels of property insurance.
  3. Adopt clear policies about who pays the insurance deductible.
  4. Act fairly and use common sense.

These steps will help you cope with these thorny issues.

 

Pool Sign Rules

The California Code of Regulations was recently supplemented with new Building Code Requirements for mandatory new pool signs, one of which requires adult supervision of children and contradicts advice under Federal discrimination requirements.

California Code of Regulations, Chapter 31B apply when “construction, installation, alteration, addition, relocation, replacement or use of any public swimming pool.” The Chapter specifically sites “auto and trailer park[s]” and “mobile home park[s]” as examples of public swimming pools.

The supplement release date was September 12, 2012 and it has been advised that industry members consider the new rules as effective now. Local counties will oversee and enforce these regulations.

The new sign regulations under the Building Code, CHAPTER 31B, SECTION 3101B, et seq. require the following:

3120B.3 No diving sign. Signs shall be posted in conspicuous places and shall state, “NO DIVING” at pools with a maximum water depth of 6 feet or less.

3120B.4 No lifeguard sign. Where no lifeguard service is provided, a warning sign shall be posted stating, “WARNING: NO LIFEGUARD ON DUTY.” The sign also shall state in letters at least 1 inch (25 mm) high, “Children under the age of 14 shall not use the pool without a parent or adult guardian in attendance.” (this language is prohibited by U.S. v. Plaza and considered discrimination against families with children)

3120B.5 Artificial respiration and CPR sign. An illustrated diagram with text at least 1/4 inch (6 mm) high of artificial respiration and CPR procedures shall be posted.

3120B.6 Emergency sign. The emergency telephone number 911, the number of the nearest emergency services and the name and street address of the pool facility shall be posted.

3120B.7 Warning sign for a spa pool. A warning sign for spa pools shall be posted stating, “CAUTION” and shall include the following language in letters at least 1 inch (25 mm) high:

  1. Elderly persons, pregnant women, infants and those with health conditions requiring medical care should consult with a physician before entering the spa.
  2. Unsupervised use by children under the age of 14 is prohibited.
  3. Hot water immersion while under the influence of alcohol, narcotics, drugs or medicines may lead to serious consequences and is not recommended.
  4. Do not use alone.
  5. Long exposure may result in hyperthermia, nausea, dizziness or fainting.

3120B.8 Emergency shut off. In letters, at least one inch (25 mm) high a sign shall be posted at the spa emergency shut off switch stating “EMERGENCY SHUT OFF SWITCH.”

3120B.9 No use after dark. Where pools were constructed for which lighting was not required, a sign shall be posted at each pool entrance on the outside of the gate(s) stating, “NO USE OF POOL ALLOWED AFTER DARK.”

3120B.10 Keep closed. A sign shall be posted on the exterior side of gates and doors leading into the pool enclosure area stating, “KEEP CLOSED.”

3120B.11 Diarrhea. A sign in letters at least 1 inch (25 mm) high and in a language or diagram that is clearly stated shall be posted at the entrance area of a public pool which states that persons having currently active diarrhea or who have had active diarrhea within the previous 14 days shall not be allowed to enter the pool water.

Collecting Assessment Debt after Foreclosure

In a typical mortgage foreclosure, the foreclosing lender has a first-priority lien on the property, which means that the foreclosure extinguishes (or wipes out) any junior liens on the property. Junior liens are any liens that are put on the public record after the recording of the first mortgage. Examples include second mortgages or home-equity lines of credit, federal and state tax liens, judgments obtained by other creditors, and yes, HOA liens. The homeowner’s actual debts to those creditors are NOT erased by the mortgage foreclosure, but as junior-lien holders, they have lost the ability to collect their debts by enforcing their liens against the property.

If you are the holder of a junior lien when a foreclosure occurs, you generally have two options to recover the balance owed to you by the previous homeowner: You can file a lawsuit against the homeowner, or you can turn the account over to a collection agency.

Filing a lawsuit to collect a debt is fraught with uncertainty. You have to locate the homeowner at his new address, pay an attorney to file the lawsuit, go to court and obtain a judgment, and then try to collect on the judgment. Moreover, just because you are awarded a judgment against the debtor does not mean you get paid. It just means you can try to collect the debt by having the sheriff seize the debtor’s property, if any, and sell it at a public auction. The process of enforcing a judgment can be difficult. Besides, most people who just lost their home in a mortgage foreclosure are not likely to have significant assets at their disposal.

As for collection agencies, some of my HOA clients have used them in the past with mixed results. Using a collection agency usually doesn’t cost the HOA anything, since most of the agencies work on a contingent-fee basis, such that the collection agency’s fee is a percentage of whatever it collects. However, most HOAs just write off the bad debt following a mortgage foreclosure because the cost and hassle of pursuing the debt are usually not worth the effort.

It is nevertheless important for an HOA to have its lien in place when a property goes into a mortgage foreclosure (assuming, of course, that there are past-due HOA assessments). During and in the years following the Great Recession, there weren’t many investors bidding at foreclosure sales. As a result, mortgage lenders would “bid in” the amount that was owed on the mortgage (sometimes less) and take title to the property. These days, real-estate prices have rebounded, demand is up, and supply is low, and we see a lot more homes sold at foreclosure for more than what is owed on the mortgage. When this happens, there are “surplus proceeds” available. This is the amount of money left over after the mortgage and foreclosure expenses have been paid. The lender typically pays these surplus funds into the Clerk of Court. Thereafter, the former owner and other creditors whose liens were extinguished can petition the court to have those funds paid over to them. The court must pay the liens in the order of their priority, to the extent funds are available, with any remaining funds paid to the former owner. With an improved economy and real-estate market, the odds for getting paid through surplus proceeds remaining after a mortgage foreclosure are better than they were a few years ago.

 

Neighbor to Neighbor Disputes: Turning Lemons into Lemonade By Lisa A. Tashjian, Esq. 

Published in the CAI-Channel Islands Chapter’s Channels of Communication
2016 2nd Quarter Magazine 

Boards are continually faced with trying to turn lemons into lemonade. The most common “lemons” boards are faced with are neighbor-to neighbor disputes. What should boards do when faced with these types of owner disputes which are never pleasant and almost always adversarial?  Does the Board of Directors have a duty to step in and, if so, what authority does it have to act in such situations? How does the Board make lemonade from these lemons?

Many neighbor-to-neighbor disputes arise from smoking complaints and noise violations.   Owners often complain when smoke, loud music or other noise emanates into their units from a neighbor, either through the interior of the units, common areas, or exclusive use common areas, such as patios and balconies.  The board’s duty to act in these types of situations depends on the specific provisions contained in the association’s governing documents and the specific facts regarding each violation.  Each is unique, and each should be analyzed separately. If these matters are not resolved at the inception, they can escalate exposing the association to liability.

The board should, at a minimum investigate a complaint and confirm a smoking or noise violation, as such action comes under the auspices of the nuisance provisions in the association’s CC&Rs.  Most CC&Rs contain a restriction that prohibits owners from engaging in any “noxious or offensive activity,” as well as “anything which might become a danger, annoyance or nuisance to occupants within the project, or which shall interfere with the rights of quiet enjoyment within the project.”  Arguably, this provision is the source of not only the board’s right but also the affirmative duty to act in specific instances of smoking and noise complaints. While it is not always pleasant to get involved with a complaint that in essence only involves two parties, boards need to evaluate association exposure and take reasonable steps to reestablish peace and harmony in its community.

Cigarette smoke, in particular, raises additional complexities as there has been a trend by municipalities to enact city-wide bans on smoking in light of the documented health issues.  In associations that are not subject to these bans, the owners should look to the CC&Rs and Rules and Regulations to determine where smoking is permissible.  For instance, smoking is sometimes banned in common areas, but not always within the exclusive use common areas.  Therefore, it must be determined where the smoke has originated, whether it is banned in that particular component of the project or whether it has interfered with the quiet enjoyment of another.

Courts have been split, however, on the reasonableness of smoking prohibitions in units.  Since many units share common air vents, ducts and pipes, smoke in one unit can substantially impact other units.  If the board is considering prohibiting smoking inside individual units, it should do so by way of an amendment to the CC&Rs, and through legal counsel.  A Rule prohibiting smoking in the association’s common areas or exclusive use common areas will likely be deemed reasonable and enforceable as a direct extension of the nuisance provisions set forth in the CC&Rs, so long as it was properly adopted pursuant to Civil Code Section 4340, et seq.  However, a rule prohibiting smoking in units will likely be deemed unreasonable unless such invasive restriction is set forth in the CC&Rs, which are recorded, thereby providing owners and prospective buyers with legal notice of the prohibition.  Courts have ruled there is no fundamental right to smoke; however, restricting or prohibiting smoking must be done carefully and consistently.

In addition to the board’s duty to handle these types of neighbor- to- neighbor disputes as CC&R violations, remember that owners also have the right to enforce the governing documents against one another.  As such, nothing prevents the owners from informally meeting to discuss a resolution or pursuing claims in court against one another for violations of the governing documents.  Whether owner and association enforcement is permissive or mandatory will be set forth in the association’s CC&Rs; therefore, it is imperative to review the association’s governing documents before a course of action is determined by the board.

Other remedies that often prove to be cost effective and efficient include Internal Dispute Resolution (“IDR”) and Alternative Dispute Resolution (“ADR”).  IDR and ADR are voluntary processes, but the Association must participate if properly requested by an owner.  The IDR process is governed by Civil Code Section 5900 et seq. and all parties are given an opportunity to explain their positions and confer in good faith in an effort to resolve the matter informally.  In neighbor-to-neighbor disputes, the Board of Directors should act as a facilitator, as opposed to a participant, and work with parties to reach an agreement without the imposition of discipline.  In ADR, the parties participate in mediation or arbitration in front of a neutral third party who attempts to help the parties reach a voluntary agreement.  ADR requires the parties to hire a third party neutral, the cost of which is split amongst the parties, as set forth in Civil Code Section 5925, et seq.  Both IDR and ADR are effective ways to help turn lemons into lemonade by resolving neighbor-to-neighbor disputes without expending significant of association resources.

Lastly, it is important to note that when the board plans to take affirmative action on neighbor to neighbor disputes which are not clearly defined in the governing documents, any policy resolution should be approved and adopted by the Board and all restrictions properly noticed and uniformly enforced as to all members.   Policy resolutions, duly adopted by boards create the justification and paper trail necessary to protect the board’s actions if ever the subject of a liability claim.

Ultimately, the board does have certain duties when it comes to neighbor-to-neighbor disputes and should investigate and determine whether a nuisance or other violation has occurred under the association’s governing documents.  As smoking complaints have become prevalent, boards can adopt reasonable Rules and Regulations or seek to amend the CC&Rs to impose restrictions.  Although boards bear certain responsibilities, owners should be reminded that when these disputes arise, they have the right to enforce the governing documents against their neighbors, and also have the IDR and ADR processes at their disposal.  The board, therefore, has a role in turning lemons (neighbor-to-neighbor disputes) into lemonade, but the extent of this role largely depends on the specific facts of the complaint and the provisions in the governing documents.