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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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A couple who just moved into the condo beneath me persist in

Customer Question

A couple who just moved into the condo beneath me persist in renovations that may compromise the structural integrity of our building. What recourse do I have?
I am on the HOA board at this complex and am aware of all of our correspondence with this couple. They claim they never received the CC&R's I know we gave them. Those rules made it clear their plans are not permissible.
In the two months the couple have lived here, the HOA board has already issued them a cease and desist order to prohibit them from the work they wanted to do.
A short time ago this evening, the walls in my unit started rattling and a loud noise came from their unit. This is a two-story complex and my unit is directly above theirs.
When I went downstairs to see what made that noise, they opened the door and I could see their son had taken down all of the dry wall on a partition in their unit that I am pretty sure is a load-bearing wall. They had torn it down to the studs.
I told them they were disturbing the peace and commented I noticed they had taken down a wall. They claim they submitted to the board the necessary paperwork to do that. When I replied I am in the board and know they have not done so, they apologized and agreed to stop right away. However it was clear they had been working on this for some time.
Everyone on the board is a working professional and this couple could well be retirees. Who knows what they do when all of us are at work.
I respect these neighbors' right to do as they please in their new home, provided they have checked with a contractor that their plans will not put the building and other residents at risk and document that with the specified paperwork.
They have not done so and are flagrantly continuing to do work that could damage this building, endanger our fellow residents and at the least, disturb our fellow residents.
What can I, or we as an HOA board do?
Thank you.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

The board needs to hire an attorney (if you do not already have counsel on retainer).

Under Davis Stirling (as well as your by-laws/CC&Rs in most cases) you can recover the HOA's attorney's fees and litigation costs for an enforcement action.

You will have to give them the right to "pre-litigation dispute resolution" - but it appears they are probably going to disregard this anyway, but do it even if it is only a formality, it is a requirement (your lawyer will help you with the drafting).

Once you sue, you can sue for both declaratory relief prohibiting them from doing such work in the future, plus any remedial work (including an engineer if necessary to inspect the property for damage and any remedial work that needs to be done to repair the damage they have already done).

Your management company should be able to provide you with referrals to local attorneys, if not, You can find local attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly). Make sure you find one with experience in HOA law and Davis Stirling.

Customer: replied 1 year ago.
Thank you, ***** ***** wanted to know what my personal legal recourse is not the HOA board. I live on the upper unit and it is affecting me most directly with the structural integrity and the noise.
Expert:  CalAttorney2 replied 1 year ago.

You can sue either the HOA, or the Homeowners below you, or both. Davis Stirling offers you both remedies.

Customer: replied 1 year ago.
Of course I can sue, but that can take awhile while they continue to violate the HOA rules and put my unit at risk. Are there any options immediately? Can I get an injunction or police to enforce this?
Expert:  CalAttorney2 replied 1 year ago.

If you file a lawsuit you can file for a "Temporary Injunction" - but you have to have a lawsuit filed to get this relief.

(I have done this for HOAs in the past it is relatively easy to do and very effective, but I do recommend hiring a lawyer as it does take a little bit of legal research and some legal experience to put together into a complete package - but a civil litigation attorney should be able to do this for you without much expense - but if you are filing a lawsuit, the HOA should really be the one doing it).

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