Stolen Property in HOAs, Who Pays?

Here is a question I received recently about stolen property belonging to an owner/resident in an HOA:

“I have been reading your blog. Would you provide information about who pays for stolen private property belonging to homeowners? Would it be the Association or the homeowner? For example, let’s say bikes were stolen from a deeded parking stall when an Association garage gate was left off its hinges overnight for repairs.”

This is a good question. The threshold answer is that owners are responsible for protecting their own personal property and associations/boards are not. Owners should carry insurance to cover such property. Likewise, tenants should purchase insurance to cover their own personal property. The bike, by being left in the deeded parking spot, was more accessible than, say, bringing it inside or keeping it in locked storage.

That said, if one could prove negligence on the part of the association that “caused” the loss, one might recover from the association for the loss. Proving negligence requires showing the board had a reasonable duty that it breached. Leaving a garage gate off overnight for repairs without securing the area might constitute negligence, if the development was located in an area where the crime rate is high. But if there was no way to secure the area, or was not any indication that crime was a common problem, or access was needed through the area, then it does not seem likely that there would be any negligence trumping the owner’s responsibility to protect and secure, and insure, their own personal property.

 

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8 Responses to Stolen Property in HOAs, Who Pays?
  1. debra spears
    July 9, 2012 | 8:28 pm

    is it a requirement and law that buyers of a condo must get their copy of CC & R’s through escrow. I have a short sale buyer and we asked in the offer to B of A that they pay for HOA transfer. They refuse. The buyer refuses saying he can get a copy from his friend who lives in the complex.
    So my question is can I notify escrow that neither seller or buyer is paying HOA. The buyer will get his own copy. And there for at closing it will not be an issue.

    • Beth Grimm
      July 12, 2012 | 4:25 am

      The escrow instructions are provided by the parties to the transaction and it is common that the HOA is provided a request to provide the documents. Under Civil Code Section 1368 it is the seller’s responsibility by law to provide a list of items to the buyer and the governing documents are included. So is certification of assessments that are due and a number of other items. The Civil Code can be accessed either on the California Government state website at http://www.ca.gov or on my website at http://www.californiacondoguru.com on the main page under the Davis Stirling Act link.

      The bottom line is that if an Escrow demand is presented to the HOA,via management or otherwise. it must comply. The law allows the seller to rely on the association to provide the information contained in Civil Code Section 1368. There are penalities involved if the association does not produce. So someone will have to pay the charges.

  2. Melissa
    July 16, 2012 | 8:20 pm

    Thank you for the information you have provided on line. I am trying to find out if chastisement of board members for improper or inappropriate behavior falls under “member discipline” or “personnel” matters and therefore can be kept from the HO members at large by being addressed in Executive sessions only. We have a board member who has repeatedly abused his position, and it is always discussed in executive session, but I think the community at large should know of his behavior. Are such discussions appropriate for Executive sessions, or should his misbehavior be discussed, and should he be reprimanded, in open meetings?
    Thank you for any help you can offer.

    • Beth Grimm
      August 13, 2012 | 4:26 am

      It is my opinion that board member conduct issues can properly be characterized as personnel matters or disciplinary issues and so are proper for executive session. I would imagine not all the HOA attorneys agree but I would guess that most knowledgeable HOA attorneys do. In my case, it is not to hide the problem from the members, but to properly address the conduct in the same private setting as would be offered any homeowner. If things get too out of hand the board should definitely seek legal help. There are some things a board can do to address bad board conduct, and one is to take steps to neutralize (remove the power and minimize or elimiate the impact of unauthorized actions) the director in a way that will keep them from harming the association or disrupting business.

    • Beth Grimm
      December 11, 2012 | 9:20 pm

      If the owners attended meetings they would see for themselves the abusive conduct.

  3. Meryl Pinion
    July 26, 2012 | 4:50 am

    This isn’t a request for condo information; it’s a request for help in finding that info. I am trying to find out what other local condominiums keep in their emergency funds; how much in an operating fund; how much is the average HOA dues (for various size condos)? How does a board decide who should change light bulbs, and what happens if s/he falls off the ladder? We have a dozen such questions. I imagine there is someplace I can go for housing data like these, but I don’t know where to go or who to call. Can you possibly point me in the right direction? Our board is a mess and we are trying to redesign all our procedures. Thank you so much.

    • Beth Grimm
      August 13, 2012 | 4:20 am

      I suggest that the board sign up for EXECUTIVE COUNCIL OF HOMEOWNERS if in the Bay Area and COMMUNITY ASSOCIATIONS INSTITUTE and seek out publications, attend seminars and trade shows, and ask others who are doing the same thing. These organizations are listed on my website (http://www.californiacondoguru.com) on the resource page. You might also go to the State Consumer website and check out the references, one of which is my site. You might visit the webstore on my site for the 40 plus publications including books and primers on all subjects, and all of the free articles under the publications link. You might follow the two blogs that are on the main page of my website and all of the subject specific articles there. If you want to understand the law for homeowner associations you could check out my book “The Davis Stirling Act in Plain English.”

      And the web can be a good resource but beware that there is a lot of garbage to sort through. There are other lawyers that have websites that publish articles and blogs, some are very good and some are very self-serving. Some sites are extremely negative about HOAs and offer zero solutions. All of these things are pretty easy to spot in short order.

      Hope this information helps.

    • Beth Grimm
      December 11, 2012 | 9:19 pm

      I don’t know where you live. Try to find programs in your area and talk to other board members who attend.