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Homeowner (me) in dispute with HOA. A tree owned by the HOA…

Homeowner (me) in dispute with...
Homeowner (me) in dispute with HOA. A tree owned by the HOA has caused significant damage to my driveway. They acknowledge ownership, but have set a cap on reimbursement for driveway replacement of $500. This was a "policy" adopted in August 2011. Do I have any recourse?
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Answered in 5 minutes by:
11/30/2017
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,911
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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Welcome and thank you for your question. I will be the professional that will be assisting you.

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Customer reply replied 2 months ago
Thank you.

First, let me tell you much I dislike HOA's. They were great in theory and are horrible in reality.

They can create a cap if they want to, however, they will still liable for all of the damages they caused. Give me a moment to arm you with the law.

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Customer reply replied 2 months ago
Sounds good

They cannot adopt a policy that allows them to be negligent and dismiss their liability. This will not hold up in court. This is a link for the law that governs HOA's in California. This is a great link https://www.davis-stirling.com/

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Customer reply replied 2 months ago
Thank you!!!!

This applies to both the board and owners.

"NEGLIGENCE

Negligence. Negligence is the failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party. (Civ. Code §1714.) To prove negligence, the injured party must establish the following elements:

  1. The defendant owed a duty of care to the plaintiff;
  2. The defendant breached that duty of care;
  3. This breach caused loss or damage to the plaintiff; and
  4. The defendant should compensate the plaintiff for that damage.

There is no "presumption of negligence" whenever a homeowner, tenant or guest suffers an injury on the association's premises. The onus is on the injured party to prove that the association breached the duty of care. They must point to some act or failure to act on the part of the association which resulted in foreseeable injury.

In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ As we have also explained, however, in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771, internal citations omitted.)

Gross Negligence. Damage to the plaintiff caused by the defendant's want of even scant care, that is, an act or omission that is aggravated, reckless or flagrant in character, which is likely to cause foreseeable grave injury or harm to persons, property, or both. (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 359.) The gross negligence standard is substantially and appreciably higher in magnitude than ordinary negligence.

A release of liability for future gross negligence, in contrast, generally is unenforceable as a matter of public policy. Ordinary negligence consists of a failure to exercise reasonable care to protect others from harm, while gross negligence consists of a want of even scant care or an extreme departure from the ordinary standard of conduct. Gross negligence...connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results. (Grebing v. 24 Hour Fitness; internal cites and quotes deleted.]

Strict Liability. Strict liability is the imposition of liability without establishing negligence or intent to cause harm. The plaintiff need only prove that the defendant caused the loss. Many homeowners mistakenly believe that their associations are strictly liable for any damage or loss they may suffer even if the HOA was not the cause of the loss. For example, a plumbing leak damages an owner's unit does not automatically make the association liable for the damage. The standard for HOA liability is negligence (unless the governing documents establish a different standard). Accordingly, the HOA must have had a duty to maintain the particular plumbing line, the HOA breached that duty (the board knew or should have known that the line needed repair and failed to take action to repair it), and the HOA's breach of its duty caused a loss to the owner. Under those conditions, the association may be liable to the owner for the loss he/she suffered.

Statute of Limitations. The statute of limitations for an action against an association or board member for negligence is three (3) years from the discovery of the wrongful act. (Smith v. Sup. Court.)" https://www.davis-stirling.com/Main-Index/Negligence-Defined

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This is a clear breach of the board's duty to you as an owner. They cannot waive or cap negligence. If you can tell me where you are located I can provide a link for local Attorneys that provide FREE consultations in your area.

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You are most welcome. It has been pleasure assisting you.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating will not impact your ability to obtain a refund.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out.

Can you see the rating scale on your end, 5 stars?

Thank you for your consideration.

Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,911
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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"TREES

Developer Trees. When developers create a new project, they overplant the property to make it attractive to buyers. Those trees eventually grow up. When they do, their roots invade sewers, lift sidewalks, crack building foundations, and drop leaves that clog gutters and drains. They can also create excessive shade, which leads to high humidity and mold.

Potential Litigation. In addition to large maintenance expenses, there is the risk of litigation related to (i) property damage from backups caused by root infested sewer lines, (ii) mold damage and personal injury claims, and (iii) slips and falls from lifted sidewalks--including public sidewalks surrounding your development.

In Alpert v. Villa Romano HOA, a woman suffered injuries when she tripped over a portion of the city's sidewalk that had been raised by tree roots. The offending roots came from one of the association's trees. The association had known of the sidewalk's condition and had taken no action to warn pedestrians of the dangerous condition or to repair it. The trial court found in favor of the association. On appeal the decision was reversed. The Court of Appeal noted that under Civil Code §1714, persons (including associations) are responsible for injury to others occasioned by their want of ordinary care or skill in the management of their property.

Can Members Override the Board? Members do not have the power to override the board's decision. As with civil governments, a member's voting rights are limited. If the membership is truly unhappy with a board's decision, it has the power to recall the board and elect directors who agree with their wish to keep all the trees. Even so, once new directors are seated, they immediately become fiduciaries. This imposes a legal obligation to act in the best interests of the association. Sometimes that means making decisions that are unpopular--such as removing trees.

Recommendation: From time to time boards need to remove trees to protect sewers, sidewalks and foundations, and minimize potential litigation. It is cheaper to reduce the number of trees than to constantly repair damaged infrastructure and defend against lawsuits. Members should not have a knee-jerk reaction against tree removal. They should work with the board to find the right balance of trees in the development--both the kind and number of trees, as well as their placement. Another solution that can be investigated is the installation of root barriers. They offer some protection against damage to sidewalks but not against invasion of sewer systems." https://www.davis-stirling.com/Main-Index/Tree-removal

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The above information should also assist you in this matter.

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Customer reply replied 2 months ago
You said you could refer me to a lawyer in my area who might be able to assist me free of charge. If that's possible, I would appreciate it. I am located in San Mateo, California

It would be my pleasure to provide a link for Attorneys in that area that provide FREE consultations. One moment please.

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