HOA dispute involving chimney cap

[hoa-dispute]

What is the name of your state (only U.S. law)? California
I'm the owner of townhouse which is a part of HOA and I'm not on the noard. At the time of the rain, chimney cap leaks water which percolates all the way into my living room through chimney. My question is who is responsible for repair of the leak, HOA or lot owner?

Below is snippet from my By-Laws, please note that chimney cap is not directly referenced:

"Association shell have the following duties and obligations with respect to each owner's lot:

(a) to repair, maintain and replace roofs, gutters and downspouts of buildings
(b) to maintain and repair other exterior building services except glass surfaces"

 

[xylene]

Have they turned you down for repairing the cap?

 

[hoa-dispute]

Have they turned you down for repairing the cap?

Yes - hoa refused to take responsibility for repairs claiming that chimney cap is component of the roof but is not a part of common area or exclusive common area and that is why it is not hoa's responsibility. What are my options in your opinion?

 

[Dave1952]

Does this chimney service more than one townhouse? If each townhouse has it's own chimney then I suspect that you'll need to fix the chimney cap since it's not a "common area". On the other hand, if the chimney serves multiple townhouses, then it is a "common area".

 

[quincy]

What is the name of your state (only U.S. law)? California

... My question is who is responsible for repair of the leak, HOA or lot owner? ...

There is another possible option, hoa-dispute - and it could be a realistic option if more than one homeowner has experienced leaks due to problems with the chimney caps.

Here is a link to California's Civil Code: http://www.leginfo.ca.gov/.html/civ_table_of_contents.html

Scroll through the link until you come to Sections 895 to 945.5, which covers construction defects, and click on them. It might not be just the homeowner or the association who could be responsible for the costs of the repair of the leak. It could potentially be the builder.

It is possible also that the chimney cap can be viewed as a "limited common element," which could make the HOA responsible for the repair if the documents do not address limited common elements in any way. Many condominium declarations DO address limited common areas like chimney caps and will indicate in the documents that the costs of any repairs to these areas will fall to the homeowner.

But, and finally, it is difficult to offer advice based on "snippets" of a document. You will want all of your HOA documents personally reviewed in their entirety by an attorney in your area, to determine if you have a legitimate claim to pursue against the HOA for damages caused to your unit by the leaking chimney cap, this if the HOA continues to refuse to accept any responsibility.

Good luck.

 

[hoa-dispute]

Just for the record, from what I was able to gather based on consultation with highly experienced HOA lawyer - If HOA's By-Laws contains clause indicating that HOA is responsible for maintenance and repair of exterior building surfaces, that automatically includes chimney caps. As simple as that.

 

[quincy]

Just for the record, from what I was able to gather based on consultation with highly experienced HOA lawyer - If HOA's By-Laws contains clause indicating that HOA is responsible for maintenance and repair of exterior building surfaces, that automatically includes chimney caps. As simple as that.

Interesting, because it really ISN'T as simple as that.

I have a case out of California sitting around somewhere that I will post back with when I locate it. Whether chimney caps are covered depends on the boundaries outlined in your declaration papers and bylaws.

That said, if you had all of your HOA documents personally reviewed by a highly experienced HOA lawyer in your area of California and this attorney has told you that you have support for a suit against your HOA if they do not repair the chimney cap, great. Problem almost solved for you then.

 

[quincy]

I actually have two cases, but following is a link to the first one I located in the pile of papers on my desk. The case is Dover Village Association v. Jennison, 191 Cal App 4th 123 (2010), and it shows that there is far more to be considered in determining responsibility for repairs: http://caselaw.lp.findlaw.com/data2.californiastatecases/G042741.PDF

When I find the other case, I will post back with it - not that it matters much if you believe your chimney cap issue is already resolved.