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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 101731
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My property back on to a community park and is separated by

Customer Question

My property back on to a community park and is separated by a wooden fence that I installed. Successive common area maintenance crews responsible for cutting common area grass have carelessly cut through fence posts with weed wackers so that a section of fence is in danger of collapse. I have contacted the HOA about this suggesting that they are responsible for the cost of repairs. Their response is that the contracted landscape crew is responsible and not them...in effect passing the buck. There has been more than one landscape company doing the maintenance work over the approximately ten years the fence has been up. My belief is that the HOA is responsible since the landscaping company acts only as their agent in maintenance work. In addition to the damage mentioned above there has been consistent water damage due to flooding in the common area as a result of poor sprinkler maintenance and regulation of watering times. Is the HOA responsible?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. This becomes subjective - allow me to explain why.

The HOA is not liable for actions of contractors. This is law. The only exception is if the contractors are involved in dangerous work, such as demolition.

The HOA is liable for actions of its employees, under doctrine of Respondeat Superior. See Podolan v. Idaho Legal Aid Services, Inc., 854 P. 2d 280 - Idaho: Court of Appeals 1993. Under it, the employer is responsible for actions of his employees during course of employment.

If the HOA hired contractors, the HOA is not liable - the contractors are. Someone in your situation may wish to pursue the contractors. However, one can also argue that even though they were LABELED as contractors, they are really employees and thus, the HOA should be liable. The balance test between contractor and employee can be explained HERE.

It is up to you whether you wish to pursue the contractors, or, decide that the contractors may be argued to be employees of the HOA and then pursue the HOA, instead.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Expert:  Ely replied 1 year ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks!