Santa Monica Daily Press

May 17, 2007

Invest in a Nice Suit when Looking to Fit in a Condo

WHAT'S THE POINT? BY DAVID PISARRA

About every two months I get a call, or a client comes in to ask me about condominiums.

It usually starts off with, "I bought this adorable little condo, and then the upstairs neighbor had a flood... And then the homeowners association refused."

A glorious tale of woe ensues wherein a first-time home buyer has purchased a condominium and now is finding out the reality of communal living. Aside from the basics of living in close quarters with other human beings, there comes with a condominium the joys of shared responsibilities.

Each owner is a member of the association, and the association is run by a document called the "Covenants, Conditions and Restrictions," also known as the "CCRs." They are the rules that all homeowners must abide by. Typically, they cover issues such as parking assignments, renting out your unit, maximum weight of dogs, to name a few. They address the petty details of communal living that make life pleasant for all.

Except they don't. Once there is a set of rules for a group of people to follow, there is always someone who wants to enforce the rules down to the last "shall not" and there is always someone who wants to bend it a little.

This is the playground for the showboat, the doodiehead with no life purpose other than to cause strife and angst in others. They frequently aspire to be the president of the association, and frequently they achieve such lofty goals through the apathy and ennui of their neighbors, all of whom have much better things to do with their lives than worry about the weight of Mrs. Scherff's Maltese who eats too many treats.

In general, the condominium association will spend huge amounts of time arguing over extremely minor items. Favorite topics of discussion are this season's flowers and why the gardener is doing a terrible job; the color that the tile should be and enforcement of some picayune rule that no one cares about but the three people arguing over it. Sounds a lot like the Santa Monica City Council doesn't it?

Where this all becomes an issue for the new homeowner is when their new unit suddenly has a major leak and there is raw sewage all over his new home. The stage is set for a showdown of Titanic proportions. The likely causes of this most common scenario are that the upstairs neighbor has either ignored a problem long enough; that it has now rotted through the floorboards, the studs in between the units and the drywall of the new homeowner's unit; or worse, the plumbing in between the units has sprung a leak.

In the first case, where the upstairs neighbor has ignored a situation, the new homeowner has two main options. One is to put in a claim with his own insurer, and let them sue the upstairs neighbor, who will put in a claim with his insurer. The other is to sue the upstairs neighbor directly and let him put in the claim with his insurer.

Both of these are terrible options. In the first, your premiums are going to go up, and in the second you have now made an enemy for life. It's a case of pick your poison. If the problem is that the plumbing has sprung a leak in between the walls, you now have a whole new situation, and frankly it is a level of hell for which Dante forgot to write about. The first thing that will happen is that everyone will blame everyone else. The association will blame the upstairs neighbor and until the truth comes out, he is the target of everyone's rage and frustration.

Then the truth comes out and the association will say that it is not its problem to repair your unit and clean the carpets, replace the drywall, and reimburse you for your antique 1970's bell bottoms and disco shirt collection.

The president of the association, who should rightly be called the "Head Tormentor," will quickly disclaim any responsibility beyond that of hiring a plumber to come out, rip through your drywall, put a piece of plumber's tape on the leak, and then leave your home with a hole in the drywall exposing the plumbing, the insulation and the mold.

At this point the new homeowner has the following swell options: Hire a plumber and file a claim with his own insurer; repair it himself or sue the association to make it repair the leak and the damage to his unit.

Obviously No. 1 has the same problem of increased premiums, and the added bonus of the unit now has a history of claims being established, plus the homeowner is now taking on the liability if the repair is done in a faulty or imperfect manner. No. 2 is a good option if you are handy, except that you are now personally liable for the quality of the repair and any future problems will, rest assured, be blamed on your shoddy workmanship, even if the problem is an electrical problem and unrelated to the repair you did. No. 3 is why the Davis-Stirling Common Interest Development Act should properly be called the "full employment for lawyers act." When the above situation appears to the homeowner, the best answer usually is to sue the association. Sue hard. Sue fast. Sue them all.

The hard reality is that the association will do everything in its power to avoid its responsibilities to the individual unit owners. Sometimes, out of an honest belief, it is not responsible. Sometimes it is a misguided belief that it's doing its fiduciary duty to the other owners, but most often, out of pride. The president will take a posture of indignation and arrogance, and this is the key to the fact that they are not going to help you. I realize that my making a pronouncement like this is scary, and it certainly isn't true in all cases. But my experience has been that more often than not, this is the best answer. There are some good associations and each case should be evaluated on its merits, but in general, when dealing with the association, it is a good practice to get its attention with a good strong lawsuit, and then negotiate new carpet that was ruined by raw sewage.

David Pisarra can be reached at (310)664-9969 or dpisarra@pisarra.com