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Roger
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prop manager used fee simple condo in California resort

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I need a California Lawyer because I own a condo "fee simple" in a California ski resort condo hotel that has over 400 rooms. The management company is a large, professional company with properties all over the world. I refused to rent my condo through them because they took too large a percentage of the rental fee and I did not have free use of the unit without a reservation. They also required I pay maintenance for repainting when they demanded etc. I also refused to sign an agreement that allows them to enter or clean my unit because there were too many restictions and conditions. They are only supposed to enter the unit for maintenance covered by my homeowners dues (HVAC Maintenance) or in case of an emergency (water leak or fire) and then they are supposed to try and get my authorization first when possible. When we were trying to plan our trip I called and asked if they would clean my unit (Iwould pay) and they said it was illegal for them to enter it without a signed cleaning agreement. Because I was injured we did not go there for over 2 years but paid all my dues and maintenance. I pay this company about $15,000 per year plus for dues, maintenace, security etc plus I pay real estate taxes of about $4,000 per year since 2005 when I bought the unit. Thus I have paid them about $90,000 as fiduciaries to maintain and protect my property (they issue the keys to the doors even when I stay there) plus another $24,000 in real estate taxes. It has cost me $114,000 plus the cost of money to buy the unit on their watch. Last month we went there for a weekend. When we entered the unit there were drink bottles, personal toiletries and cigarrete lighters that were al obviously not ours. The sheets on the bed were dirty and the place has some wera and tear type damage. We reported it to the manager on duty and he went to the unit with a gaget that read the eletronic door log. We found that the unit had been entered well over 400 times by the night manager and others. A few of them were ligitimate (change HVAC filters,etc) and I had approved them. They found out the manager was using my unit to nap, watch TV, etc. We know this based on the master key card that was issued to him and which was logged by the electronic door lock (I have a copy of the log and an admission in an email that this all happened and they take responsability. The company and employees are all supposed to bonded and the company is insured. If I wanted my unit used I would have rented it and gotten paid. It is not yet known if he was actually renting the unit to friends etc. The rate they charge to rent the room is normally between 279 and 499 per night depending on season and holidays. The average rate is $370 per day. Giving them the benefit of the doubt they used the room for at least 360 days since my last visit 2+ years ago. I believe I have recourse for 360 days @ $370/ night which is $132,830 for usage of my unit. Not to mention illegal entry etc. They have used my unit 18,000% more than I have but I have paid all the bills. They are professional and they set the rates and issue the keys. Given that one never knows how a judge will rule, how do you think I would fair in a lawsuit or arbitration to recover lost rental from them? A. Slam Dunk B. 75% yes 25% no C. 50/50 D. 25% yes 75% no How much would you try to recover. A $132,830 B.$132,830 plus a penaulty C.A lot less D. What is a reasonable amount?
Submitted: 3 years ago.
Category: Business Law
Expert:  Roger replied 3 years ago.

Hi - my name is XXXXX XXXXX I'm a Business litigation attorney here to assist you.

 

You have very solid proof and they have essentially admitted to abusing your property, using it without your permission, trespassed and breached its fiduciary duty to you as custodian over the property for these past few years. Thus, you have an extremely solid case based on what you've posted here.

 

I don't believe in slam dunks, but I think you certainly have a viable, solid case (about as close to a slam dunk as you can get) that proves you've been wronged.

 

The big issue is how much is the case worth? I wish I had a crystal ball to tell you this!! However, I do believe they will claim that you're not entitled to rent because you elected not to rent your unit, leaving it vacated. Thus, it's not like they intentionally didn't rent your unit in order to have them a place to crash while at work. I think this is a weak argument, but it's the best I can see that they can make given the information here.

 

Your argument is that you shouldn't be taken advantage of because you want to keep your unit from being rented and that the company breached its fiduciary duty and trespassed intentionally several times into your unit. Because of the long and intentional actions, I think you'd have a claim for the use of the property at the daily rate. Also, I would recommend that you seek money for any damages, needed repairs, etc. caused by their illegal use. You also have a claim for their breach of fiduciary duty to you and trespassing.

 

I don't think it's unreasonable to ask for the full $132k, plus any damage repair costs plus a little for the fiduciary breach and trespassing.

 

I would highly recommend that you consult a local attorney about this before you open negotiations to settle, but I think $200k is a conservative demand.

 

If you were to sue, I think you'd have a right to seek punitive damages because of the breach of trust that this creates for the other 400+ owners that may also be victims of something like this; this, added to the intentional trespassing, you could get into some serious money (punitive are allowed at up to 9 times the actual damages).

 

Thus, I would suggest that you speak to a local attorney and discuss the case; once you've had time to consider your damages, make a demand and see where it goes from there.

Customer: replied 3 years ago.

SOmewhat better than what I expected. Are you at all familiar with California? It is unique in many ways, however, ususally consumer favorable. Would you say your answer is based on basic civil/criminal code that is pretty universal in most states or could California law differ significantly in this sort of situation.

 

Thanks

Expert:  Roger replied 3 years ago.

I am not licensed in California, but I have actually been involved in several mass tort cases in your state. Thus, I have some working knowledge of the system there.

 

However, by and large, my response is based on basic "horn book" contract and tort law, which is the same in every state. The comment about punitive damages is actually based on a recent US Supreme Court decision that says punitive damages are capped at the compensatory amount times a single digit multiplier (9 being the highest). Thus, if you were to sue and get $50,000 in damages for these guys trashing your property, you could seek up to $450,000 in punitives.

 

I think the utter disregard of your property which they were entrusted AND paid to handle was being abused on a daily basis is a very solid claim for the damages you seek.

 

I don't expect the company to simply write you a check for $200k without some legal wrangling, but I think at the end of the day, you've got them in a corner.

Roger, Attorney
Category: Business Law
Satisfied Customers: 27062
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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