landscaper damage

[adjusterjack]

ounds more like a townhouse than a condo. With a townhouse, you own the structure but not the land on which it sits, and the rules to which I've referred are different.

The insurance would also be different.

An HO-6 is for condos where the owner doesn't own the building structure (other than his own improvement).

HO 3 and 5 are for townhouses where the owner owns his building structure.

 

[reds54]

Maintenance is different than repairing damage caused by someone else.

If your condo association will not pay for repairs, your insurance company or the landscaper should. You hopefully have evidence enough to show the landscaper’s lawn work caused the broken window.

That's the biggest question. I moved out on a Tuesday. Lawn was mowed sometime between Tuesday and Friday when the realtor visited property. The glass was broken and the stone was laying on the ground just below the window. Hopefully that's enough evidence. What is really a shame is I had just disabled cameras when we left!!!

 

[reds54]

The unitowner's insurance will only pay for covered items. The building structure is generally not a covered item in a condo. The unitowner's policy follows the definition of "unit" that appears in the CC&Rs. Unit might include windows by definition, might include other items. One would have to carefully read the CC&Rs to find out.

It occurs to me to ask. Was the door perhaps paid for by the unitowner as an improvement? If that's the case then a unitowner's improvements to the structure should be covered by the unitowner's policy.

As for the landscaper's liability, there might not be any. He would, of course, be liable for any damage caused by his negligence. Where is the negligence here? Did he have a duty to examine every blade of grass to make sure there wasn't a rock behind it? I don't think so. A lawn mower kicking up a rock is a risk that is inherent in mowing grass and likely beyond the control of the landscaper. Thus, no negligence and nothing to sue him for, unless his contract with the HOA makes him strictly liable for any damage with or without negligence.

That's what I'm thinking also, as a non-expert of course. Does he agreement to pay half constitute an agreement?

 

[reds54]

The unitowner's insurance will only pay for covered items. The building structure is generally not a covered item in a condo. The unitowner's policy follows the definition of "unit" that appears in the CC&Rs. Unit might include windows by definition, might include other items. One would have to carefully read the CC&Rs to find out.

It occurs to me to ask. Was the door perhaps paid for by the unitowner as an improvement? If that's the case then a unitowner's improvements to the structure should be covered by the unitowner's policy.

As for the landscaper's liability, there might not be any. He would, of course, be liable for any damage caused by his negligence. Where is the negligence here? Did he have a duty to examine every blade of grass to make sure there wasn't a rock behind it? I don't think so. A lawn mower kicking up a rock is a risk that is inherent in mowing grass and likely beyond the control of the landscaper. Thus, no negligence and nothing to sue him for, unless his contract with the HOA makes him strictly liable for any damage with or without negligence.

Interesting question. The door was replaced because the original door was in poor condition. Yes, it was an upgrade but then again anything would have been an upgrade to a 30year old door.

 

[reds54]

The insurance would also be different.

An HO-6 is for condos where the owner doesn't own the building structure (other than his own improvement).

HO 3 and 5 are for townhouses where the owner owns his building structure.

Thought it is a 2 story and resembles a townhouse it is a condo where we don't own the building, nor the land it sits on, only the interior. For example roof repair is responsibility of the association as well as gutters, downspouts, etc. We are responsible for windows and doors.

 

[reds54]

Reading the bylaws first is probably smart before filing suit.

I owned for 25+ years before selling. Bylaws have never changed and I knew then practically by heart. However I didn't retain documents when I moved. I'm reaching out for clarification.

 

[quincy]

Interesting question. The door was replaced because the original door was in poor condition. Yes, it was an upgrade but then again anything would have been an upgrade to a 30year old door.

Thought it is a 2 story and resembles a townhouse it is a condo where we don't own the building, nor the land it sits on, only the interior. For example roof repair is responsibility of the association as well as gutters, downspouts, etc. We are responsible for windows and doors.

Did the condo association pay for the upgrade on the door?

It is sounding less likely that you can show the landscaper caused the damage - unless the landscaper admitted to breaking the window when mowing.

Your insurer said you should recover damages from the condo association or the landscaper? What is your deductible?

 

[adjusterjack]

the stone was laying on the ground just below the window.

What was the size of the stone? Diameter in inches?

That's what I'm thinking also, as a non-expert of course. Does he agreement to pay half constitute an agreement?

Negotiated settlements can be enforced even in the absence of liability. Do you have documentation of the agreement?

Interesting question. The door was replaced because the original door was in poor condition. Yes, it was an upgrade but then again anything would have been an upgrade to a 30year old door.

Doesn't matter how old it was. If you paid for the new door and have documentation, then it's an improvement and should be covered by your insurance. So the next question is how much is your deductible?

We are responsible for windows and doors.

Read your CC&Rs. If "unit" is defined to include windows and doors your insurance should cover the door, subject to your deductible.

I owned for 25+ years before selling. Bylaws have never changed and I knew then practically by heart. However I didn't retain documents when I moved. I'm reaching out for clarification.

Check your association's website to see if the CC&Rs are posted. If not, check the county recorder's website to see if the CC&Rs were recorded way back when. If not, then you'll have to get a copy from someone, perhaps one of your old neighbors will allow you to run off a duplicate. Don't expect much cooperation from the HOA.

I can't clarify what I can't read. But I can read my sample of the HO-6 Condominium Unitowners Policy. The insuring agreement reads:

COVERAGE A - BUILDING PROPERTY We cover items of real property which pertain directly to your unit and are your insurance responsibility under the governing rules of the condominium. This includes building additions and alterations, installations or additions comprising a part of the described unit. This also includes your share of any association deductible but only when the deductible is not assessed against all unitowners.

If you can show that you paid to upgrade the door, it should be covered. You would have to read your policy to make sure the wording is the same.

Your deductible is likely $500 but these days could be $1000. Either way you'll still be out of pocket most or all of the repair.

 

[quincy]

What was the size of the stone? Diameter in inches?



Negotiated settlements can be enforced even in the absence of liability. Do you have documentation of the agreement?



Doesn't matter how old it was. If you paid for the new door and have documentation, then it's an improvement and should be covered by your insurance. So the next question is how much is your deductible?



Read your CC&Rs. If "unit" is defined to include windows and doors your insurance should cover the door, subject to your deductible.



Check your association's website to see if the CC&Rs are posted. If not, check the county recorder's website to see if the CC&Rs were recorded way back when. If not, then you'll have to get a copy from someone, perhaps one of your old neighbors will allow you to run off a duplicate. Don't expect much cooperation from the HOA.

I can't clarify what I can't read. But I can read my sample of the HO-6 Condominium Unitowners Policy. The insuring agreement reads:

COVERAGE A - BUILDING PROPERTY We cover items of real property which pertain directly to your unit and are your insurance responsibility under the governing rules of the condominium. This includes building additions and alterations, installations or additions comprising a part of the described unit. This also includes your share of any association deductible but only when the deductible is not assessed against all unitowners.

If you can show that you paid to upgrade the door, it should be covered. You would have to read your policy to make sure the wording is the same.

Your deductible is likely $500 but these days could be $1000. Either way you'll still be out of pocket most or all of the repair.

I am thinking that reds54’s insurance deductible is probably greater than the $700. Seven hundred seems awfully low to me.

IF the deductible IS greater than the damages, reds54’s insurance agent could very well have told reds54 to seek damages from the condo association or the landscaper.

 

[Zigner]

I know I am reiterating what has already been said above here, but I feel it is necessary for the OP to see it again, because I don't think s/he digested it.

How do you know that (1) the rock came from the landscaper's mower and (2), even if it did, that the landscaper was negligent? You will need to show both things to the satisfaction of the court (if it gets that far) in order to prevail.

 

[quincy]

I know I am reiterating what has already been said above here, but I feel it is necessary for the OP to see it again, because I don't think s/he digested it.

How do you know that (1) the rock came from the landscaper's mower and (2), even if it did, that the landscaper was negligent? You will need to show both things to the satisfaction of the court (if it gets that far) in order to prevail.

Although I agree that’s necessary in court, it appears that the landscaper initially agreed to pay half the cost of repairs ($350). That indicates that the landscaper believed at least initially that he was at fault.

 

[zddoodah]

That's the biggest question. I moved out on a Tuesday. Lawn was mowed sometime between Tuesday and Friday when the realtor visited property. The glass was broken and the stone was laying on the ground just below the window. Hopefully that's enough evidence.

It's not evidence of anything. The stone could have come from lots of places other than the landscaper/gardener's lawnmower. Of course, if the landscaper/gardener admitted that's what happened, then that's a different story.

Does he agreement to pay half constitute an agreement?

Ummm...yes, X = X. An agreement that is not supported by consideration is not an enforceable contract.

 

[Litigator22]

What is the name of your state? PA

We moved from condo in Pa to FL. Within 1 week after moving out (leaving property empty until settlement), landscaper apparently kicked up a stone and damaged condo back door. This door was 4 sets of 3' panels with enclosed blinds. Realtor had visited property and found damage and took pictures along with the offending stone. Lawn had been newly cut. Cost to replace 1 insert because of enclosed blind was about $700. I approached condo regarding insurance who referred me to landscaper. I also contacted my insurance but they said there were 2 others responsible, HOA and landscaper therefore they would not honor claim. Landscaper said it was not worth submitting to insurance and he would send payment. I offered to split with him so neither one of us had full financial burden. He asked for paypal, venmo and physical address but has sent nothing and is now ignoring me. This happened about 3 months ago. We are going back to Pa in Dec and if I filed a small claims complaint what are my chances of winning?

What are your chances of winning?

First, you'd need to establish that as claimant you are the real party in interest. Meaning that you are the owner of the damaged property and thus entitled to be compensated for the loss.

Secondly, you'd need competent evidence of the reasonable cost of repairing the door to its condition immediately prior to the damage.

Thirdly, you'd need to produce predominating evidence that the subject damage was the proximate result of some negligent or willful conduct on the part of, or attributable to the defendant. And because you appear to have no first hand knowledge of the cause of the damage or witnesses thereto - here is where you are apt to stub your toe!

Hopefully you are not of the mind that the landscaper's initial expressions of a willingness to compensate for the damage would serve as admissible evidence proving legal liability for the loss - because it would not!

That is to say - not unless in your mentioned discussions of resolving the dispute his offer to compensate were couched in language admitting or inferring personal responsibility for the damage. Otherwise a bare offer to compensate would not be admissible evidence of legal liability. In fact no reference to the subject matter of resolving the claim would be admissible.

The reason is that to admit offers of settlement as evidence of liability on the part of an offeror would tend to discourage amicable resolutions and this the overburdened courts are unwilling to do.

 

[reds54]

Nor should it. The landscaper may be liable. The HOA isn't liable just because it hired the landscaper.

Note that I said the landscaper may be liable because sometimes lawnmowers kick up small stones even in the absence of negligence.



I'd be at least a little surprised if there's any sort of detailed contract with a landscaper/gardener. Whether you're entitled to a copy of such contract depends on the HOA's CC&Rs and by-laws.



Not surprising, and I'd expect the landscaper/gardener (if it has insurance at all) probably has a self-insured retention (sort of like a deductible for liability insurance) well in excess of $350.



What I recited previously is fundamental condominium law. I neither know THAT you're "responsible for replacement windows" or, if you are, WHY that is the case. It's possible that the CC&Rs have altered the fundamental rules of condo law. Needless to say, neither I nor anyone else here is familiar with your CC&Rs. We can only provide generalized info. You'll also need to review your insurance documents to determine exactly what is and isn't covered.



Sounds more like a townhouse than a condo. With a townhouse, you own the structure but not the land on which it sits, and the rules to which I've referred are different.

While I don't disagree with the suggestion of filing a small claims suit, it is really worth your time and the expense of travel for $350?

Probably not. I'm more annoyed that he agreed to split the cost with me, has been leading me on for months and has now gone silent. We will be coming north anyway so travel expense wouldn't apply as we are already planning to be there. Yes, it not much money but at this point it's more the principle. Someone breaks my door and I'm the one paying for it.

 

[adjusterjack]

Yes, it not much money but at this point it's more the principle

People who say that are fooling themselves. It's not the principle, it's always the money. Human nature is wanting to punish those who have wronged us. Civilized society generally precludes violence so we go after their money instead.

Someone breaks my door and I'm the one paying for it.

Yep. That's the risk of home ownership. Sometimes things happen that you just have to fix on your own dime. Been there.