In response to your question concerning your HOA’s responsibility for the property damage to your condo, you need a real estate or general litigation attorney with experience in property damage and insurance claims. There are many in the San Diego area. If you need references, please call or email my office.
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If the condo was built within the last 10 years, I would suggest consulting with a construction defect attorney. It is possible that other unit owners are experiencing the same issues.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
I agree you may want to consult a construction defect attorney or real estate attorney. However, don't get too caught up on the labels attorneys place on themselves. Some attorneys who call themselves real estate attorney may have a practice that focuses on construction defects. Other real estate attorneys will not have any such focus at all. Some attorneys who specialize in construction defect may have a subspecialty involving moisture intrusion or mold problems and others will have no experience in such area. In other words, you need to do your due diligence beyond labels. Good luck.
This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.
There are several issues at play here. First, just because your insurance denies the property damage claim against your HOA does not mean that it is an uncovered claim. If there is a denial from your insurance company in CA, your policy should be closely analyzed to determine whether or not coverage exists.
Second, just because your insurance denies the claim does not mean that the claim is the HOA's responsibility. It is possible that the intrusion is your responsibility but it is not a covered claim.
Third, if your reports indicate that the water intrusion and mold resulted from poor stucco maintenance by the HOA, the HOA has to determine whether or not to file a claim with its insurance. If the HOA does face responsibility, the $25,000 deductible is to be paid out of the reserves and/or by all members of the HOA (including you). If the damages fall below that $25,000 threshold, and if the HOA does not have enough in its reserves to pay for the damage, then the HOA will likely have to levy a special assessment against all members to pay for that damage.
You are correct that the threshold issue is to determine the source of the leaks. That will tell you whether the responsibility is yours or the HOA's or some combination thereof. Then you can get into the issue of whether your insurance and/or the HOA accepts responsibility.
DISCLAIMER: Nothing herein is intended to be construed as legal advice, and nothing herein is to be construed as having created an attorney-client relationship.
You will need to have an attorney review your insurance policy and the CC&Rs with your HOA but presumably you will need to take action against your HOA if the damage is outside. It is also a good idea to determine if there are other units with similar or related problems.