Duty to Investigate Backup
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DUTY TO INVESTIGATE

Over the course of ten years sewage flooded the Affan’s unit eight times. Each time it happened, the association cleaned it up but failed to investigate the cause. The ninth time sewage flooded their unit the Affans sued the HOA claiming it breached its duties to maintain and repair the common area plumbing.

No Judicial Deference. The association argued that it was protected by the Lamden decision which established the principle that courts defer to the maintenance decisions of associations. The court disagreed and ruled against the association. It pointed out that Lamden did not apply because:

The judicial deference doctrine does not shield an association from liability for ignoring problems; instead it protects the Association’s good faith decisions to maintain and repair common areas . . . Put simply, the clogged drain lines and resulting sewage eruption do not implicate any decision by the Association [based upon reasonable investigation], but rather reflect the Association’s abiding indecision and inattention to plumbing maintenance issues. [Affan v. Portofino Cove.]

Duty to Maintain. The duty to maintain and repair a sewer line is not always clear. Boards should contact legal counsel for a legal opinion and prepare of a chart of duties whenever their documents are unclear.

Recommendation: Whenever a board has evidence of an underlying maintenance problem, it should investigate the issue and make appropriate repairs. Fixing a problem is much less expensive than litigating the issue (and then fixing it under court order). Avoid the aggravation and legal fees by fixing problems before they erupt into a messy ones.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC