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In 2008, I heard squirrels in my townhome attic and contacted

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In 2008, I heard squirrels in my townhome attic and contacted my HOA. They sent out a contractor who, according to the written work order, screened a gable vent which led into the attic.Within a few months, I continued to hear "scratching" and recontacted either the HOA or the contractor. (Can't recall which one, nor do I have any proof I called.) They told me I was just hearing the squirrels running across the roof. In the fall 2010, a friend looked into my attic and saw it full of rodent feces, smelled of urine and all the insulation packed down. All the insulation had to be removed (due to the contamination) and replaced. I crawled on the roof and found 3 roof vents which allowed the squirrels access. While the vents had raised caps, there was a gap where the squirrels were able to slip into, gaining access into my attic. (No screens on the vents and I was easily able to put my entire hand under the cap and into the vent.) My HOA hired another company which screened all the vents and solved the problem. THe HOA is responsible to all exterior maintenance, (Per written articles; by-laws.) including the roofs and specifically, "roof jacks. " (vents) The HOA has denied my request for reimbursement saying, a Board resolution passed in 1992, absolves them from any liability resulting in their lack of response, delay in response, or anything relating to being responsible for damage as a result of not maintaining the exterior. What are my chances of winning in small claims court?
Submitted: 5 years ago.
Category: Legal
Expert:  MShore replied 5 years ago.
Thank you for the post, I am happy to assist you by answering your questions. Your chances of winning are excellent. This is because the HOA cannot absolve itself of liability via a Board vote. Please let me know if you need any additional guidance.
MShore, Attorney
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Customer: replied 5 years ago.
How can I convince the Board of this in an appeal process, to make them understand they cannot absolve themselves...any statute I can refer to?
Expert:  MShore replied 5 years ago.
Hello, in what state is the property located?
Customer: replied 5 years ago.
Colorado
Expert:  MShore replied 5 years ago.
Thank you, XXXXX XXXXX searched extensively for a statute directly on point, but to no avail. I with therefore open this question for other experts to assist further.
Expert:  LawHelpNow replied 5 years ago.

Thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.

 

  1. I am a licensed attorney with homeowners' association law experience. I will be glad to try and answer your question seeing another legal expert has opted out. I hope that the following information will be helpful to you, but please just write back if you have any follow-up questions or need clarification on anything after reviewing the following information.
  2. "...any statute I can refer to?" The most applicable provision would be Colorado Revised Statutes § 38-33.3-311: "Tort and contract liability. (1) Neither the association nor any unit owner except the declarant is liable for any cause of action based upon that declarant's acts or omissions in connection with any part of the common interest community which that declarant has the responsibility to maintain. Otherwise, any action alleging an act or omission by the association must be brought against the association and not against any unit owner. If the act or omission occurred during any period of declarant control and the association gives the declarant reasonable notice of and an opportunity to defend against the action,
    the declarant who then controlled the association is liable to the association or to any unit owner for all tort losses not covered by insurance suffered by the association or that unit owner and all costs that the association would not have
    incurred but for such act or omission. Whenever the declarant is liable to the association under this section, the declarant is also liable for all expenses of litigation, including reasonable attorney fees, incurred by the association.
    Any statute of limitation affecting the association's right of action under this section is tolled until the period of declarant control terminates. A unit owner is not precluded from maintaining an action contemplated by this section by being a unit owner or a member or officer of the association. (2) The declarant is liable to the association for all funds of the association collected during the period of declarant
    control which were not properly expended."
  3. I hope that makes sense, but please do not hesitate to write back if needed. I shall be signing off soon to attend to some other professional obligations. Please rest assured, however, that I will be sure to check for any updated posts from you when I return to this online forum. I am sorry for all you have been enduring and hope all is resolved and works out.

 

I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.

 

If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.

 

The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.

LawHelpNow, Attorney/Lawyer
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Customer: replied 5 years ago.
So, what does all that mean????
Expert:  LawHelpNow replied 5 years ago.

Hello again,

 

Thanks for writing back -- good to hear from you.

 

I will be glad to comment further -- please see below.

 

I do ask that you kindly press "Accept" to process my answer.

 

  1. "So, what does all that mean????" It means the homeowners' association cannot disclaim liability for the damages you have described. In plain terms, they are not "off the hook" in terms of their legal duties (responsibilities). You had asked for, "any statute I can refer to?", so that was what I was trying to provide pursuant to your request.

 

I hope that helps a bit more and that things work out properly for you in this matter.

 

Take care and thanks again for choosing JustAnswer®!

 

[Please click "Accept" -- this is the only way I get paid for my work and services provided.]

LawHelpNow, Attorney/Lawyer
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Experience: Relax. Let's work together. Practical solutions.
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