The Deferrence Given to HOA Maintenance Decisions is Not a Blanket Immunity

A homeowners association ("HOA") of a common interest community enjoys "judicial deference" concerning ordinary maintenance decisions. Individual owners who might believe their HOA caused or failed to prevent a problem, like a burst pipe in a common area, flooding, termite infestation, etc., should educate themselves and consult an attorney regarding the viability of the potential claim and anticipated defenses.

A court will defer to the ordinary maintenance decisions of an HOA, where the HOA selects from various means a method to maintain or repair a development's common areas. This deference is an affirmative defense that the HOA can assert to protect itself from liability. To do so, the HOA must show that it performed a reasonable investigation, in good faith and with regard for the best interests of the community and members, pursuant to its authority under the law and CCRs. Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 253.

Last month, the Court of Appeal, Fourth Appellate District, held that the judicial deference does not shield an association from liability for ignoring problems and explained it protects an HOA's good faith decisions to maintain and repair common areas. Affan v. Portofino Cove Homeowners Association, et al. (2010) 2010 DJDAR 16702. In Affan, owners in a condo complex complained of sewage backups over the years. The HOA discussed possibly hiring someone to clean the sewage lines but never actually took action. Eventually, it hired a pluber to clean the linem, however by that time the lines were so clogged that a special method of cleaning was required but was not used. As a result, after the cleaning, a serious "sewage eruption" occurred.

The Court of Appeal found that the HOA in responding to the sewer line issue did not make a "maintenance decision." Therefore, it could not avoid liability for the sewage problems under the judicial deference doctrine. As an aside, the Appellate Court also described that the HOA's managing agent could not rely on the judicial deference doctrine because it was not an HOA.

Affan v. Portofino provides an instructive example for HOA Board Members and owners, of the type of conduct an HOA will be expected to perform. If you are involved in an HOA or common interest development feel free to contact me and I would be happy to discuss the law and concerns that regard defects like that addressed above and other issues.