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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102379
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I need help filling out my affirmative defenses answer to a

Customer Question

I need help filling out my affirmative defenses answer to a summons and complaint I received from my HOA
JA: Because real estate law varies from place to place, can you tell me what state the association is in?
Customer: California
JA: Has any paperwork been filed?
Customer: Yes, they filed their Summons and complaint and now I have to file my answer. I'm doing a general denial because the complaint is not verified.
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  Ely replied 10 months 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. Tell me the essence of their complaint, please?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 10 months ago.
Basically they are complaining that I used my single family detached residence as a vacation rental on Air BnB and it was a nuisance and against HOA rules of short term leases.I stopped doing Air BnB quite a while ago, but apparently my neighbors complain on a daily basis ... This is bogus. They also stated that I don't live in my home, which is untrue.Basically I am answering the complaint with a general denial because their complaint is unverified, and I am listing my affirmative defenses...I just want to make sure I have all my bases covered. They mailed me paperwork via certified mail, but I never signed for anything because I thought it was just junk mail from them...they send a ton of mail all the time. We had a verbal agreement where I told them I would unlist my property and I did, and I haven't caused any damages that should warrant monetary damages.
Expert:  Ely replied 10 months ago.

Thank you.

So just to be clear, they allege that the property is still being listed/used with AriBnB. Right?

Customer: replied 10 months ago.
it is not. They are citing that they receive calls from neighbors who state that they see guests coming and going still. My guess is that these "guests" are my friends/family. Honestly I have stopped listing my home for quite some time and it is my full-time residence.
Expert:  Ely replied 10 months ago.
Thank you.
Is there any way you can upload the complaint? That would really help.This way I would get to see their cause(s) of action and any alleged violations under Davis Stirling.
Also, I may have to step away from the site for a few hours soon. If you are okay with this, I can provide a detailed answer but it may not be for a few hours. Or, if you need a reply RIGHT AWAY, no worries - I will opt out of another expert that can help faster. Please let me know.
Customer: replied 10 months ago.
take your time :)
Expert:  Ely replied 10 months ago.

My apologies for the wait.

As you may be aware, many Defendants not only file a general denial (normally at the end of the Answer), but also admit/deny paragraphs. This is recommended to do here. See below for an example HERE. Someone in your situation may wish to deny certain claims by the Plaintiff.

Such as: "Defendant denied paragraph 7 through ..." Make the HOA prove that one had airbnb guests over.

Affirmative defenses is when Defendant says, "Yes, I did it, but I'm allowed to, because..." Problem is, if the HOA specifically disallows short term rentals, Ca law allows such a prohibition. See HERE. There is no affirmative defense. One may be better off simply filing general/specific paragraph denials, and putting the onus on the HOA to prove their case by a preponderance of the evidence.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.

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 experts get credit for our time. 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 10 months ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!

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