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Am I Responsible for Repairs/Maintenance or Is My HOA Responsible?

Homeowner’s Associations have their pros and cons. Nobody likes to pay for the HOA monthly fees, but when they exist homeowners enjoy the benefits of a neat and well-maintained community. As time goes on in your homeownership experience and HOA membership, there will be a point where something requires replacement or repairs. This is true whether you live in an HOA overseeing condominium or single family residences.

A client of mine in Point Loma received a notice from their condominium HOA indicating that her bathroom fixtures caused water to seep through her bathroom floor seeping into condos located below her unit. The letter required repairs to fixtures and piping. A married couple and clients of mine in Little Italy received a notice from their HOA indicating that the floors in the unit were in disrepair causing noise disruption to the neighbors below their unit. The letter required repairs to flooring within the unit. A client of mine in Mira Mesa received a notice that a wall shared with the community was deteriorating and required fixing. The letter required repairs within 60 days. A client of mine in Point Loma received a notice that a balcony outside of her condo. required structural repairs. The notice letter required repairs by the homeowner. Repairs were required in each of these notices issued by the HOA and in each of these notices it was written in a manner that leads the homeowner to immediately believe it was their responsibility to repair without question. However, the process of repairs is not that easy and it is NOT always the homeowner’s responsibility.

Homeowners should be cooperative and responsive to letters sent by HOAs demanding repairs. In doing so, homeowners should also begin the process by working closely with the HOA and carry out some factual analysis to determine the cause behind the problem as well as responsibility of repair. For the homeowner, this includes an analysis of the community’s CC&R’s (Covenants Conditions and Restrictions) as well as Repairs & Maintenance policies. This is where things can get sticky depending upon the HOA’s available documents and the clarity of the content regarding repairs.

If you receive a notice or demand to make a repair in your condominium or home under the jurisdiction of a Homeowner’s Association, consult with an attorney to review the matter closely.  Depending on the item(s) requiring repairs and maintenance, the CC&Rs and California civil code rules, a homeowner or the HOA holds responsibility to repair the required item(s). Analyze the situation.

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Mechanic’s Liens and How Business Owners Can Avoid Them

What is a Mechanic’s Lien

A mechanic’s lien is a security interest in the title to property for the benefit of those who have supplied labor or materials that improve the property. The lien exists for both real property and personal property.

A University Heights Story

A restaurant owner and client in the University Heights area of San Diego called me one evening concerned because he had just received a Notice of a Mechanic’s Lien. He thought this meant he was being sued in Superior Court. I alleviated his concerns right away by letting him know that this document is not a lawsuit but it essentially states that there is a problem with a potential upcoming legal dispute.

A mechanic’s lien is used mainly by contractors who are not paid for work performed in a property. The language on the notice looks intimidating. If you receive one, read it carefully and read it twice for comprehension.

A mechanic’s notice reads as follows, “Upon the recording of the enclosed MECHANICS LIEN with the county recorder’s office of the county where the property is located, your property is subject to the filing of a legal action seeking a court-ordered foreclosure sale of the real property on which the lien has been recorded. That legal action must be filed with the court no later than 90 days after the date the mechanics lien is recorded. The party identified in the enclosed mechanics lien may have provided labor or materials for improvements to your property and may not have been paid for these items. You are receiving this notice because it is a required step in filing a mechanics lien foreclosure action against your property. The foreclosure action will seek a sale of your property in order to pay for unpaid labor, materials, or improvements provided to your property. This may affect your ability to borrow against, refinance, or sell the property until the mechanics lien is released. BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU MAY WISH TO SPEAK WITH YOUR CONTRACTOR IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR MORE INFORMATION ON MECHANICS LIENS GO TO THE CONTRACTORS STATE LICENSE BOARD WEB SITE AT www.cslb.ca.gov.”

Procedural Requirements

Understand that as with other court actions, a mechanic’s liens has certain procedural requirements before a party such as a contractor can seek a lien against your property. Check out the Contractor’s State License Board to learn a bit more about the procedural requirements and changes made effective as of 2012.

Call to discuss a notice of mechanic’s lien as soon as you receive one as there are important deadlines involved in the process.  Resolution to your disputes may come quickly if immediate action is taken.

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Mediation and/or arbitration clauses in your contracts. Understand how each option works before signing your next contract.

When you enter into a contract you will often see that the initial terms are the most important ones describing the goods or services, prices, quantities and other matters that two parties have negotiated.  These are the material terms that contain the purpose of the contract. As you move towards the end of the contract, you will find miscellaneous boilerplate terms that a lot of people tend to glance over for a split second before signing the agreement. Miscellaneous terms tend to include provisions such as:

  • Jurisdiction. This paragraph describes which state laws will be used to interpret the terms of the contract.
  • Severability. This paragraph states that if any provision is determined invalid, the rest of the contract’s terms will be enforceable.
  • Assurances. This paragraph states that one party or the parties will take necessary actions necessary to carry out the terms of the contract.
  • Attorney’s Fees. This paragraph describes how and whether any attorney’s fees will be enforced if attorney’s are required in enforcing the terms of the contract.

The above are only a few examples and basic descriptions of the miscellaneous types of terms within a standard agreement. There are many others that should be reviewed thoroughly to understand the entirety of the transaction.

Well-written contracts also include a paragraph describing how any future disagreements related to the contract will be resolved. This paragraph is usually titled after your options – Mediation, Arbitration and/or Dispute Resolution. Understand that by signing the agreement, you are binding yourself to these resolution options in the event there is a problem in enforcing the contract in the future regardless of whether the enforcing party or not. It is a very important paragraph to review which will affect your future and should not be taken lightly.

  • Mediation is typically a 1 day negotiation facilitated by a neutral third party, usually a retired judge, with the goal of resolving the matter jointly between the parties.
  • Arbitration is a longer process similar to a lawsuit in court, except that it is managed outside of court using 1 arbitrator or a panel to make a decision. The process involves presenting evidence, arguments, calling witnesses and questioning by the parties, and so forth.

Both options are made available as more time- and cost efficient solutions towards resolving legal problems related to a contract rather than going to court for resolution.  The above descriptions are extremely basic and should be explored carefully. Well-written dispute resolution paragraphs describe in detail how the process will work.  Seek legal advice to interpret the paragraph if it is written in legal jargon.

BEFORE you sign an agreement, we recommend taking your contract to an attorney to discuss whether a dispute resolution option is best over the other option, Of course, this all depends on a few variables:

  • the type of transaction
  • the relationship between the parties
  • whether mediation is a practical option between the parties
  • your available funds towards resolving problems should they arise
  • whether you have a true option in negotiating the terms or simply have to adhere to the terms as written

KNOW that mediation, arbitration, and other alternative dispute resolution options apply to a wide variety of contracts. These include:

  • cable bill
  • internet bill
  • new car purchase and lease
  • mortgages
  • employer/employee contracts
  • furniture purchase contracts
  • car service agreements
  • rental car contracts

Practically, all well-drafted and complete contracts include this type of provision. If your contract does not include such provision, seek legal advice before signing the contract.