Saw this on my Google alerts...interesting take on "Construction Defects"
By Joe Forward, Legal Writer, State Bar of Wisconsin
The economic waste doctrine will prevent a party from obtaining a windfall for construction defects. But an appeals court recently clarified that evidence of a property's diminished value as a result of the defect is not necessary in the damages equation.
Dec. 30, 2010 – In determining whether a defendant must fully replace a construction defect or simply repair it, application of the economic waste rule does not require the defendant to present evidence of the property’s diminished value.
Champion Companies of Wisconsin Inc. sold bricks to Stafford Development LLC, which Ricky Zanow owned. Glen-Gery Corp. manufactured the bricks. Stafford Development used the bricks to build Zanow’s home. Turns out, the bricks had cosmetic defects.
Zanow sued Glen-Gery seeking $344,000 in damages to replace every brick. Glen-Gery argued that repairing the bricks was the proper remedy, and repairs would cost less than $7,500. Neither party offered credible evidence as to the diminished value of the property.
READ THE REST OF THIS ARTICLE BY CLICKING HERE
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Showing posts with label Case Law. Show all posts
Showing posts with label Case Law. Show all posts
Saturday, January 1, 2011
Saturday, December 4, 2010
Re-Blog From The INSURANCE COVERAGE MONITOR-California Supreme Court Determines That Administrative Proceedings Can Be “Suits”
Saw this article from a Google alert...
California Supreme Court Determines That Administrative Proceedings Can Be “Suits”
The proceeding at issue in Ameron was a federal adjudicative proceeding before an administrative law judge of the former United States Department of IBCA. The proceeding involved “22 days of trial, numerous witnesses, and substantial evidence,” and involved many of the same procedural requirements as a normal lawsuit filed in a court of law. In the IBCA proceeding, witnesses testify under oath and are subject to cross-examination by opposing counsel, and evidence is presented subject to the Federal Rules of Evidence. After considering all these factors, the Supreme Court determined that given the nature of the quasi-judicial proceeding before the IBCA, a reasonable insured would expect that the IBCA proceeding was the equivalent of a “suit” and, therefore, would expect the policy to provide coverage for defense of such proceedings.
This case is significant because the Supreme Court showed a willingness to carve out an exception to the “bright-line” standard set forth in Foster-Gardner that only a lawsuit filed in court could constitute a “suit” as that term appears in most general liability policies. Foster-Gardner was decided by a sharply divided Supreme Court at the time with a critical dissenting opinion by Justice Kennard. In Ameron, Justice Kennard wrote a concurring opinion, wherein she reiterated her strong belief that Foster-Gardner was wrongly decided. Although Justice Kennard would prefer that Foster-Gardner be overruled, she believes that the Ameron decision “is at least a step in the right direction.”
READ THE WHOLE ARTICLE AT INSURANCE COVERAGE MONITOR BY CLICKING HERE.
Sunday, November 14, 2010
Re-Blogged From The Critical Path-Resolving Construction Defect Cases: Are Arbitration Provisions in CC&R's Enforceable?
Saw this blog post by Ron White of Ron White Mediation...passing it on for our readers edification...
Real estate developers often prefer arbitration over jury trials for various reasons, not the least of which is the belief that they would fair better in front of an experienced construction law arbitrator than they would in front of 12 jurors who probably have little or no understanding of the construction industry.
READ THE REST OF THIS BLOG BY CLICKING HERE
Resolving Construction Defect Cases: Are Arbitration Provisions in CC&R's Enforceable?
In construction defect cases there is often a dispute within the dispute: should the case be prosecuted in a court of law or proceed under the terms and conditions of an arbitration provision? There are rational reasons for selecting arbitration over a court or jury trial. Many believe that arbitrations are more cost effective than jury trials, for example. However, parties who arbitrate their disputes give up the constitutional right to a jury trial and their appellate rights are generally restricted, among other things.Real estate developers often prefer arbitration over jury trials for various reasons, not the least of which is the belief that they would fair better in front of an experienced construction law arbitrator than they would in front of 12 jurors who probably have little or no understanding of the construction industry.READ THE REST OF THIS BLOG BY CLICKING HERE
Wednesday, November 10, 2010
Faultily Installed Heated Exterior Tile Deck Causes $67,000 in Damages, Insurance Co Denies Claim, Suit Goes to Court, Here's The Ruling
From LEAGLE.COM
After Safeco Insurance Company of America (Safeco) denied Connie Stevens Fisher's claim for water damage to her Wyoming home, Stevens sued for breach of insurance contract. The trial court granted Safeco's motion for summary judgment and entered judgment in its favor. We affirm.
After Safeco Insurance Company of America (Safeco) denied Connie Stevens Fisher's claim for water damage to her Wyoming home, Stevens sued for breach of insurance contract. The trial court granted Safeco's motion for summary judgment and entered judgment in its favor. We affirm.
In July 2004 Stevens submitted a $67,000 claim to Safeco for damage caused by a leak from the home's terrace, which serves as the roof for a room with an indoor pool and spa, into the room below it. Stevens contended the leak resulted from a failure of the home's hydronic system, used to heat the stone on the terrace to melt snow and ice. The claim included the cost to repair the hydronic system, replace the terrace stone and repair the damage to the interior sheetrock and wood. Following inspection by a structural engineer retained by Safeco and a claims adjuster, review of the blueprints for the home and discussion with the tile setter who had installed the terrace stone, in September 2004 Safeco denied the claim, finding coverage was excluded by the water damage, weather and construction defect exclusions based in part on the structural engineer's report the leak resulted from improper construction methods and inadequate slope for the terrace.
In a December 2004 letter counsel for Stevens objected to Safeco's denial of coverage, asserting the exclusions Safeco had relied on were not found in Stevens's policy. Safeco responded it had relied on the correct Quality Crest policy form and sent counsel a certified copy of it. (It appears counsel had mistakenly believed the Quality Plus policy form sent to Stevens in late 2004 for the policy period beginning November 15, 2004 was the operative policy; Stevens canceled that policy on February 16, 2005.) Following more communications from Stevens and additional investigation, Safeco confirmed its denial of coverage in May 2005.
Tuesday, October 19, 2010
ReBlog From Merlin Law Group-Can a Condo Association Get Out of an Insurance Settlement Agreement?
Saw this on a Google alert...
so I'm reblogging the post from Merlin Law Group's Blog
Village Northridge Homeowners Association entered into a settlement agreement with its insurance company for $1.5 million for earthquake damage, based on representations from the insurance company that the insurance policy only provided $4.9 million worth of coverage. The settlement agreement expressly stated that the association could not bring suit against the insurance company for any issue related to the earthquake damage after the settlement. The association later learned that the policy actually provided $11.9 million worth of coverage, and filed suit against the insurance company for fraudulent inducement into the settlement agreement.
The problem with the homeowners association’s lawsuit for fraudulent inducement was the settlement agreement expressly prohibited it from filing a lawsuit against the insurance company. The trial court told the homeowners association that it would have to return the $1.5 million in settlement funds if it wanted to proceed on the lawsuit for fraudulent inducement, but...CLICK TO READ THE REST OF THIS ARTICLE
so I'm reblogging the post from Merlin Law Group's Blog
Can a Condo Association Get Out of an Insurance Settlement Agreement?
What happens when a condominium or homeowners association enters into a settlement agreement with an insurance company and later finds out that the settlement was not enough or was fraudulently induced? That is exactly what happened in California in the case of Village Northridge Homeowners Ass’n v. State Farm Fire and Cas. Co., 237 P.3d 598 (Cal. 2010).Village Northridge Homeowners Association entered into a settlement agreement with its insurance company for $1.5 million for earthquake damage, based on representations from the insurance company that the insurance policy only provided $4.9 million worth of coverage. The settlement agreement expressly stated that the association could not bring suit against the insurance company for any issue related to the earthquake damage after the settlement. The association later learned that the policy actually provided $11.9 million worth of coverage, and filed suit against the insurance company for fraudulent inducement into the settlement agreement.
The problem with the homeowners association’s lawsuit for fraudulent inducement was the settlement agreement expressly prohibited it from filing a lawsuit against the insurance company. The trial court told the homeowners association that it would have to return the $1.5 million in settlement funds if it wanted to proceed on the lawsuit for fraudulent inducement, but...CLICK TO READ THE REST OF THIS ARTICLE
Wednesday, September 22, 2010
From HOA Law Blog-Association Does Not Have to Stop Water Intrusion Into Condominium Units
Saw this interesting article from David Swedelson's Blog on an unpublished opinion/case law on water intrusion into a condo unit...
Association Does Not Have to Stop Water Intrusion Into Condominium Units
Calemine v. Jared Court Homeowners Association, Inc.
In an unpublished opinion, the California Court of Appeals, relying on the Supreme Court’s decision in Lamden, upheld a trial court ruling that a condominium association, acting in good faith and in the best interests of the community, can decide not to take action to stop water from intruding or leaking into a unit due to construction defects in common areas.
Jared Court, an 18 unit townhouse style condominium association located in Woodland Hills, California, is made up of four buildings and common area that includes a tennis court, swimming pool, concrete walkways, front patios and mature landscaping. The CC&Rs require that the Association "maintain the portion of the project not occupied by the units [the common area], in good, clean, attractive and sanitary order and repair."
Each unit in Jared Court has a similar townhouse style three-level design. The lowest level consists of a garage and a windowless "bonus room"; the second level contains an entry foyer, living room, family and dining room, kitchen and powder room; and the upper level has three bedrooms and two bathrooms.In an unpublished opinion, the California Court of Appeals, relying on the Supreme Court’s decision in Lamden, upheld a trial court ruling that a condominium association, acting in good faith and in the best interests of the community, can decide not to take action to stop water from intruding or leaking into a unit due to construction defects in common areas.
Jared Court, an 18 unit townhouse style condominium association located in Woodland Hills, California, is made up of four buildings and common area that includes a tennis court, swimming pool, concrete walkways, front patios and mature landscaping. The CC&Rs require that the Association "maintain the portion of the project not occupied by the units [the common area], in good, clean, attractive and sanitary order and repair."
In 1982, shortly after the association was completed, unit owners became aware that water was leaking through the foundation and into the garage and bonus room areas. The association sued the developer/builder for construction defects and received a settlement of $335,000. Using the settlement funds, the association hired a contractor to repair and waterproof the interior of the below-grade surfaces of the garages and bonus rooms.
The repairs performed by that contractor were defective and did not resolve the water intrusion issues. The association sued that contractor in 1996 and settled that second generation defect case for $565,000. During the lawsuit, the association hired a consultant/expert who estimated that it would cost approximately $1,020,896 to repair the defects and stop the water intrusion; and that the repairs would involve extensive trenching and disruption to the common areas.
READ THE REST OF DAVID's ARTICLE BY CLICKING HERE TO GO TO HOALAWBLOG
Wednesday, September 8, 2010
From Durability & Design-Employer Found Liable for Risk to Subs’ Workers
General contractors and other job-site employers may be held responsible for violations created by a subcontractor whose workers are exposed to safety or health hazards, the Occupational Safety and Health Review Commission has ruled.
The decision upholds the Occupational Safety and Health Administration’s multi-employer citation policy and reverses a decision that the Commission itself made during the previous administration.
Under the policy, OSHA inspectors may cite employers on multi-employer worksites for violations that do not expose their own workers to occupational hazards. For example, a general contractor who controls the worksite may be responsible for violations created by a subcontractor, exposing the subcontractor’s employees to safety or health hazards.
The Commission’s Aug. 19 decision affirms an earlier decision by the Eighth Circuit Court of Appeals. The court had rejected the Commission's previous view that employers are READ THE REST BY CLICKING HERE
The decision upholds the Occupational Safety and Health Administration’s multi-employer citation policy and reverses a decision that the Commission itself made during the previous administration.
Under the policy, OSHA inspectors may cite employers on multi-employer worksites for violations that do not expose their own workers to occupational hazards. For example, a general contractor who controls the worksite may be responsible for violations created by a subcontractor, exposing the subcontractor’s employees to safety or health hazards.
The Commission’s Aug. 19 decision affirms an earlier decision by the Eighth Circuit Court of Appeals. The court had rejected the Commission's previous view that employers are READ THE REST BY CLICKING HERE
Thursday, July 8, 2010
California Court of Appeal Clarifies Definition of "Retention"
Yassin v. Solis, 184 Cal. App. 4th 524 (Cal. Ct. App. 2010)
By: Carlo L. Rodes and Brett D. Bissett, K&L Gates, Los Angeles
In this case, the court of appeal set forth a definition for retention that applies whenever a contractor seeks an award of penalties for improperly withheld retention under a California prompt payment statute.
The plaintiff-contractor, Diaa Yassin was hired by the defendants-owners, (collectively “Solises”), to improve the Solises’ home. Under the contract, Yassin was to receive a series of payments throughout various stages of construction and the last payment was to be made upon completion of the work and before occupancy. Yassin ultimately sued the Solises for money allegedly owed under the contract. Although the court addressed other matters, a principal issue was the status of the final two payments of $15,000 and whether those amounts qualified as retention payments under California Civil Code § 3260. Under section 3260, if an owner fails to make retention payments within the time prescribed by that section, a contractor may recover a penalty in the amount of 2 percent per month on the improperly withheld amount plus attorney fees.
The trial court awarded the Solises $50,000 in damages and $36,205.14 in attorney fees pursuant to section 3260(g). The trial court reasoned that because the final payment was not due until the certificate of occupancy was issued, the final payment was retention because the amount was withheld until the work was completed and approved.
On appeal, the court overruled the Solises’ fee award on the ground that the last payment did not constitute a retention and, thus, Civil Code Section 3260(g) was inapplicable. The court interpreted a retention to be funds withheld from payment, and not the payment itself. Specifically, the court held that a retention has to be an amount that, by contract, has been retained from an amount owing for work already done, but not presently paid, rather than an unpaid sum or last payment due upon completion. According to the court, the contract at issue did not include retention terms, which are generally a percentage of each progress payment.
The court noted the prior case of Murray’s Iron Works, Inc. v. Boyce, which held that a down payment and final payment are not progress payments under section 3260.1. Murray’s, 71 Cal. Rptr. 3d 317, 330-31 (Cal. Ct. App. 2008). The Yassin court explained, however, that this does not mean that “a final payment due at the conclusion of performance under an installment contract is a retention. It is simply the last installment.” Yassin, 184 Cal. App. 4th at 537.
The Yassin court concluded that section “3260.1 imposes a penalty for the wrongful withholding of a progress payment, [and] it makes sense that § 3260 imposes a penalty on the wrongful withholding of amounts retained from progress payments—i.e. the retention. The remedy [here] for the failure to pay a last installment payment upon completion of services is simply damages for a breach of contract.” Id. The court, consequently, held that the Solises were not entitled to attorney fees under section 3260(g) for improperly withheld retention.
By: Carlo L. Rodes and Brett D. Bissett, K&L Gates, Los Angeles
In this case, the court of appeal set forth a definition for retention that applies whenever a contractor seeks an award of penalties for improperly withheld retention under a California prompt payment statute.
The plaintiff-contractor, Diaa Yassin was hired by the defendants-owners, (collectively “Solises”), to improve the Solises’ home. Under the contract, Yassin was to receive a series of payments throughout various stages of construction and the last payment was to be made upon completion of the work and before occupancy. Yassin ultimately sued the Solises for money allegedly owed under the contract. Although the court addressed other matters, a principal issue was the status of the final two payments of $15,000 and whether those amounts qualified as retention payments under California Civil Code § 3260. Under section 3260, if an owner fails to make retention payments within the time prescribed by that section, a contractor may recover a penalty in the amount of 2 percent per month on the improperly withheld amount plus attorney fees.
The trial court awarded the Solises $50,000 in damages and $36,205.14 in attorney fees pursuant to section 3260(g). The trial court reasoned that because the final payment was not due until the certificate of occupancy was issued, the final payment was retention because the amount was withheld until the work was completed and approved.
On appeal, the court overruled the Solises’ fee award on the ground that the last payment did not constitute a retention and, thus, Civil Code Section 3260(g) was inapplicable. The court interpreted a retention to be funds withheld from payment, and not the payment itself. Specifically, the court held that a retention has to be an amount that, by contract, has been retained from an amount owing for work already done, but not presently paid, rather than an unpaid sum or last payment due upon completion. According to the court, the contract at issue did not include retention terms, which are generally a percentage of each progress payment.
The court noted the prior case of Murray’s Iron Works, Inc. v. Boyce, which held that a down payment and final payment are not progress payments under section 3260.1. Murray’s, 71 Cal. Rptr. 3d 317, 330-31 (Cal. Ct. App. 2008). The Yassin court explained, however, that this does not mean that “a final payment due at the conclusion of performance under an installment contract is a retention. It is simply the last installment.” Yassin, 184 Cal. App. 4th at 537.
The Yassin court concluded that section “3260.1 imposes a penalty for the wrongful withholding of a progress payment, [and] it makes sense that § 3260 imposes a penalty on the wrongful withholding of amounts retained from progress payments—i.e. the retention. The remedy [here] for the failure to pay a last installment payment upon completion of services is simply damages for a breach of contract.” Id. The court, consequently, held that the Solises were not entitled to attorney fees under section 3260(g) for improperly withheld retention.
Saturday, April 10, 2010
Arizona Supreme Court Clarifies Economic Loss Doctrine
Arizona Supreme Court Clarifies Economic Loss Doctrine
By Thomas A. Stoops
STOOPS, DENIOUS, WILSON & MURRAY, P.L.C.
The recent Arizona Supreme Court opinion in Flagstaff Affordable Housing, L.P. v. Design Alliance, Inc., CV-09-0117-PR, clarified the application of the “economic loss doctrine” which bars plaintiffs in certain circumstances from recovering economic damages in tort. The Supreme Court noted that it had previously applied the economic loss doctrine only in products liability cases but now extended it to construction defect cases, and held that a property owner is limited to contractual remedies when an architect’s negligent design causes economic loss but no physical injury to persons or other property. The Supreme Court catalogued a number of confusing and apparently inconsistent holdings dealing with the application of the economic loss doctrine and attempted to clarify its application. The Court extended the economic loss doctrine to design professionals in construction defect cases, observing that it had not addressed the issue of economic loss doctrine since the 1984 case of Salt River Project Agricultural Improvement and Power District v. Westinghouse Electric Corp., 143 Ariz. 368, 694 P.2d 198 (1984).
Because of a good deal of confusion about the definition of the “economic loss doctrine” the Supreme Court began by clarifying terminology. The Court’s definition of economic loss is...READ THE REST BY CLICKING HERE
Monday, March 8, 2010
In Texas, Justice is Served-Perry Homes Loses CD Suit, HO's Awarded 58 Million
An elderly couple who since 2000 have been battling Houston-based Perry Homes over construction defects in their home in suburban Fort Worth, Texas, on Monday were awarded $58 million in damages by a jury in a Tarrant County court. That verdict has been characterized in press reports as a sharp rebuke of Bob Perry, Perry Homes’ owner and one of the state’s most powerful and politically influential businessmen.
The jury awarded the homeowners, Bob and Jane Cull, $7.1 million in actual damages and $40 million in punitive damages against Perry Homes. It also awarded $7.1 million in actual damages and $4 million in punitive damages against the builder’s warranty provider, Houston-based Warranty Underwriters Insurance.
Perry Homes referred all questions to its spokesman, Anthony Holm, who called the verdict “jackpot justice--absurd by any measure and an abuse of the legal system.” He said Perry Homes would “address these matters with a trial court, and if necessary, appeal.”READ THE REST OF THIS STORY BY CLICKING HERE
Tuesday, October 20, 2009
Oregon Court of Appeals "Clarifies" When a Contractor Can Be Sued For Negligence
Hmmm, this will be interesting for many contractors who may have shortcutted on a job....they may be open to defect suits and negligence...Read this article below from The Daily Journal of Commerce in Oregon.
BY: Melody Finnemore
Ruling on construction defect claims is criticized
POSTED: Monday, October 19, 2009 at 05:38 PM PTBY: Melody Finnemore
The legal waters swirling around construction defect claims have gotten murkier for both residential and commercial contractors due to a recent decision by the Oregon Court of Appeals.
In Abraham v. T. Henry Construction Inc., et al., a residential construction defect case, the court tried to clarify when a contractor can be sued for negligence. The main issue was the statute of limitations, which is longer for a negligence claim than a breach-of-contract claim.
In a 2003 case, Jones v. Emerald Pacific Homes Inc., the appeals court ruled that an owner who had a contract with a contractor could sue for negligence if the contractor had violated a standard of care that was independent of any contractual duty. This non-contractual duty is called a “special relationship.” In Abraham, the court held that, among other things, a contractor’s responsibility to comply with applicable building codes creates the type of special relationship necessary for a negligence claim, according to a case summary by Portland law firm Stoel Rives.
Eric Grasberger, a Stoel Rives attorney who represents owners, developers, designers and contractors, said that prior to the Abraham decision, owners could make a strong case for the existence of a special relationship because owners must trust contractors to carry out certain “means and methods” of construction.
“You can’t be there to watch them hammer every nail or put every shingle on the roof, so the owner trusts the contractor to do that,” he said.
Generally, negligence claims would go to trial so a jury could determine whether a special relationship existed. The benefit of going to trial is that most cases settle before ever reaching a jury, Grasberger said.
However, the Abraham decision weakens the special relationship argument, a detriment for owners. It also allows owners to file negligence claims based on breaches of state building codes, which could bode badly for contractors, he noted.
“Most defect cases, 90 percent of the time, are water intrusion cases. I don’t think it’s too hard to show a breach of the Oregon uniform building code in most water intrusion cases,” Grasberger said.
READ THE REST OF THIS ARTICLE BY CLICKING HERE
Saturday, September 5, 2009
Court in Nevada Rules Against DR Horton and Johnson Development in Defect Case
Court rules against Vegas developer over home defects
By Cy Ryan (contact)
Friday, Sept. 4, 2009 | 2:19 p.m.
CARSON CITY – The Nevada Supreme Court has ruled against a development company being sued for construction defects by four homeowner associations on behalf of their unit owners in Clark County.
The court held that D. R. Horton, Inc., the development company, could not be sued by associations representing the interests of the owners of the individual units.
The construction defects suits were each brought by the homeowner associations of First Light, Dorrell Square, Court Aliante and the High Noon at Arlington Ranch.
The associations sued on behalf of themselves and the owners of the units, which included townhomes and duplexes.
D. R. Horton argued these associations could not represent the individual owners in these suits.
The court said “a homeowners’ association has standing to file a representative action on behalf of its members for constructional defects in individual units of a common-interest community.”
Three of the four unanimous opinions were authored by Chief Justice James Hardesty. The fourth did not identify who wrote the decision.
The court, however, imposed a condition, saying these cases must be handled as class-action suits. Class-action suits are to promote efficiency in the legal system and are to deal with a single wrong.
In the decision on First Light, Hardesty said homeowners often have different claims and “as a practical matter, single-family residence constructional defect cases will rarely be appropriate for class action treatment.”
READ THE REST OF THIS ARTICLE BY CLICKING HERE
By Cy Ryan (contact)
Friday, Sept. 4, 2009 | 2:19 p.m.
CARSON CITY – The Nevada Supreme Court has ruled against a development company being sued for construction defects by four homeowner associations on behalf of their unit owners in Clark County.
The court held that D. R. Horton, Inc., the development company, could not be sued by associations representing the interests of the owners of the individual units.
The construction defects suits were each brought by the homeowner associations of First Light, Dorrell Square, Court Aliante and the High Noon at Arlington Ranch.
The associations sued on behalf of themselves and the owners of the units, which included townhomes and duplexes.
D. R. Horton argued these associations could not represent the individual owners in these suits.
The court said “a homeowners’ association has standing to file a representative action on behalf of its members for constructional defects in individual units of a common-interest community.”
Three of the four unanimous opinions were authored by Chief Justice James Hardesty. The fourth did not identify who wrote the decision.
The court, however, imposed a condition, saying these cases must be handled as class-action suits. Class-action suits are to promote efficiency in the legal system and are to deal with a single wrong.
In the decision on First Light, Hardesty said homeowners often have different claims and “as a practical matter, single-family residence constructional defect cases will rarely be appropriate for class action treatment.”
READ THE REST OF THIS ARTICLE BY CLICKING HERE
Sunday, February 1, 2009
Another deck coating case settled in favor of HOA
From Marc Alexander & William M. Hensley 's www.calattorneysfees.com website;
Homeowner sued HOA in unlimited jurisdiction superior court over an assessment for maintenance/repair work done on homeowner’s balcony. In Gabriel v. Canyon Haven Homeowners Assn., Case No. D052178 (4th Dist., Div. 1 Jan. 28, 2009) (unpublished), the appellate court affirmed a $1,575 judgment against homeowner and an award of attorney’s fees/costs of over $18,500 ($17,923.50 of which were fees).
You have got to read this case on a balcony maintenance issue that just got settled recently!
What a fascinating case and great insight into the world of HOA's. I was a CAI certified manager of HOA's some years ago, before becoming a deck waterproofing contractor and consultant.
I've always maintained that waterproof decks are first a roof (protecting space below that was intended to be kept dry and free of moisture intrusion) and then secondly a deck one can walk on.
HOA's CC&R's usually put the onus of maintaining, repairing and replacing the roofs on the Association. It should be the same with decks in all cases. Asking owners to maintain the deck attached to their unit is simply asking for trouble; they are almost always left unmaintained. I see it happen in my job everyday. Case in point, the claim that 18 decks at this Assoc were in similar condition.
Why did the HOA take so long to try to make the owner maintain their deck? Deck coatings, depending on the manufacturer/type, typically need to be resealed every 1-3 years.
It doesn't sound like a large balcony, judging from the relatively small cost of replacing the waterproofing membrane.
As a contractor, I would have to charge around $600 at least to cover my costs and time to reseal this one balcony.
As a single owner, try to get a deck contractor to come out and clean and reseal your ONE little deck-you'll probably find that is pretty futile.
So why so much for one deck? My time to come inspect the deck and write a contract/proposal for the work. Office personnel time to check the contract, schedule the work, write a pre-lien notice that says is we don't get paid...we can lien your home, 2 workers to set up and send out with a truck and the materials/supplies needed for the work, drive to the home, set up and protect the work area, pressure wash and clean, and then reseal the deck. Wait time while the deck is drying, I pay them by the hour.
Now if I had 18 decks to do at once, the costs to do all of them at once would be greatly reduced, as we can take advantage of production work where we are not standing around watching paint dry-we are moving to another deck to pressure wash it, then to another, then we come back and start repairs/resealing, moving through all of them efficiently. The HOA stays on a regular maintenance schedule, ensuring that the decks are water resistant as intended.
HOA's mistake it sounds like was assigning maintenance to owners, owners mistake was fighting it in court with an attorney who is only to happy to bill you.
This is a sad case indeed!
Thanks for the insight, I hope you don't mind that I posted the case/your article onto my blog at
Homeowner sued HOA in unlimited jurisdiction superior court over an assessment for maintenance/repair work done on homeowner’s balcony. In Gabriel v. Canyon Haven Homeowners Assn., Case No. D052178 (4th Dist., Div. 1 Jan. 28, 2009) (unpublished), the appellate court affirmed a $1,575 judgment against homeowner and an award of attorney’s fees/costs of over $18,500 ($17,923.50 of which were fees).
You have got to read this case on a balcony maintenance issue that just got settled recently!
What a fascinating case and great insight into the world of HOA's. I was a CAI certified manager of HOA's some years ago, before becoming a deck waterproofing contractor and consultant.
I've always maintained that waterproof decks are first a roof (protecting space below that was intended to be kept dry and free of moisture intrusion) and then secondly a deck one can walk on.
HOA's CC&R's usually put the onus of maintaining, repairing and replacing the roofs on the Association. It should be the same with decks in all cases. Asking owners to maintain the deck attached to their unit is simply asking for trouble; they are almost always left unmaintained. I see it happen in my job everyday. Case in point, the claim that 18 decks at this Assoc were in similar condition.
Why did the HOA take so long to try to make the owner maintain their deck? Deck coatings, depending on the manufacturer/type, typically need to be resealed every 1-3 years.
It doesn't sound like a large balcony, judging from the relatively small cost of replacing the waterproofing membrane.
As a contractor, I would have to charge around $600 at least to cover my costs and time to reseal this one balcony.
As a single owner, try to get a deck contractor to come out and clean and reseal your ONE little deck-you'll probably find that is pretty futile.
So why so much for one deck? My time to come inspect the deck and write a contract/proposal for the work. Office personnel time to check the contract, schedule the work, write a pre-lien notice that says is we don't get paid...we can lien your home, 2 workers to set up and send out with a truck and the materials/supplies needed for the work, drive to the home, set up and protect the work area, pressure wash and clean, and then reseal the deck. Wait time while the deck is drying, I pay them by the hour.
Now if I had 18 decks to do at once, the costs to do all of them at once would be greatly reduced, as we can take advantage of production work where we are not standing around watching paint dry-we are moving to another deck to pressure wash it, then to another, then we come back and start repairs/resealing, moving through all of them efficiently. The HOA stays on a regular maintenance schedule, ensuring that the decks are water resistant as intended.
HOA's mistake it sounds like was assigning maintenance to owners, owners mistake was fighting it in court with an attorney who is only to happy to bill you.
This is a sad case indeed!
Thanks for the insight, I hope you don't mind that I posted the case/your article onto my blog at
Sunday, July 20, 2008
From Attorney Gary Kessler's Condo Court Blog...The Case of the Ocean View Deck Denial
Here's a very recent decision on a deck expansion that would impact a neighbor's view, so the ARC turned down the owners plans for expansion...we just added Attorney Kessler's Blog in today and I went to read some and this was the first article I saw...
FACTS. An Association’s architectural review committee (ARC) denied Mr. and Ms. Fox’s application to expand their deck because it would impair their neighbor’s ocean view. The Foxes sued the associaocean view decktion, arguing that their application should have been approved since the neighbor did not have any right to keep her existing view.
DECISION OF THE COURT. In the July 16, 2008 unpublished opinion of Fox v. Corniche Sur Mer Homeowners Assn., the California Court of Appeals ruled in favor of the Association.
REASONING OF THE COURT. The court reasoned that:
“[I]t was well within the discretion of the ARC to consider the impact of the improvement on existing ocean views. California law specifically authorizes common interest developments to grant an architectural review committee broad, subjective discretion to reject proposed improvements on aesthetic, artistic, or similar grounds.”
READ THE REST BY CLICKING OUR HEADLINE TO GO TO GARY'S BLOG
FACTS. An Association’s architectural review committee (ARC) denied Mr. and Ms. Fox’s application to expand their deck because it would impair their neighbor’s ocean view. The Foxes sued the associaocean view decktion, arguing that their application should have been approved since the neighbor did not have any right to keep her existing view.
DECISION OF THE COURT. In the July 16, 2008 unpublished opinion of Fox v. Corniche Sur Mer Homeowners Assn., the California Court of Appeals ruled in favor of the Association.
REASONING OF THE COURT. The court reasoned that:
“[I]t was well within the discretion of the ARC to consider the impact of the improvement on existing ocean views. California law specifically authorizes common interest developments to grant an architectural review committee broad, subjective discretion to reject proposed improvements on aesthetic, artistic, or similar grounds.”
READ THE REST BY CLICKING OUR HEADLINE TO GO TO GARY'S BLOG
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