March 2, 2021 • By Dennis Beaver
Today’s story will be of special interest to three groups of readers:
1. Anyone who owns a condominium under the management of an HOA, a Home Owners Association.
2. Managers of HOAs.
3. Companies who contract with HOAs and cause damage to the property of condo owners.
Let’s begin with this question: Who is responsible if a contractor hired by the association damages property inside the condo?
That was “Stephanie’s” question.
“Our HOA contracts with ‘Get Outa Here, Bugs’ for pest control. During a treatment, without permission, the technician pulled out my drop-in GE electric range to spray. He dropped it and the outer glass of the oven door shattered. While 22 years old, it looks and functions as if it were brand new, but replacement parts are not available.
“The pest control company wanted to take the door off and install tempered glass, but GE says this is inviting a fire hazard. They recommend replacing the oven and not attempting a repair as there is no way of assuring safety for high temperatures.
“I told Get Outa Here what GE said, requesting them to replace it with a comparable new, drop-in oven, but they said, ‘get out of here’ and refused, offering $300, claiming ‘It had depreciated.’
“They broke it, they should replace it. I don’t need a fire hazard and want to be fair, but the only solution I can see is to have them install a new oven. Management of my HOA essentially told me to jump in the lake. What’s fair?”
If some night you can’t sleep, just Google “HOA’s contractor damaged my property.” You will find post after post of HOA management trying to wiggle out of responsibility for hiring incompetents who wind up destroying condo owner’s property.
I asked the opinion one of the nation’s leading experts in the legal obligations of HOA management, attorney and author, John Linford, from Bakersfield.
“In my opinion, certainly the pest control company and very possibly the HOA are responsible for damaging Stephanie’s oven. Drop-in ovens require special care to remove and install. Unless the HOA had written proof of having determined the pest control’s technician was trained in removal of these ovens, this raises the inference of their negligence in hiring Get Outa Here.
“Unlike a car, a fully functioning oven doesn’t depreciate and she is owed a new oven, end of story.”
I ran these facts by a friend of this column, attorney Evan W. Walker of San Diego. His law practice concentrates on personal injury and property damage. He agrees with Linford, pointing out:
“While the law in this area differs somewhat state-to-state, unless the condo owner signed some sort of a waiver of liability, Stephanie is owed a new oven. I am amazed at the lack of common sense often shown in cases of this nature, especially arguing that the oven had depreciated. It is not a car, so such a position is plain wrong,” Walker strongly maintains.
It occurred to me that if the HOA and Get Outa Here refuse to compensate her or turn the matter over to their insurance carriers and she goes to small claims court and wins, their insurance rates could be raised, as court filings are monitored by the insurance industry.
Walker replied, “Yes, they could see an increase in their premiums as their carriers would be aware they pose an increased risk of loss.”
And, finally, I asked Walker, “If Get Outa Here were your clients, what would be your advice to them?”
“Pay for what you broke!”
I set up a conference call with my reader and “Alex,” owner of Get Outa Here.
While friendly and apologetic, he insisted on comparing the oven to a 22-year-old automobile. “That’s not going to fly,” I replied, telling him what I learned from phoning pest control companies across America. “To a one, every owner said, ‘If we broke it, we will either repair or get her a new oven. That’s what’s fair.’ ”
Either a cheapskate or just plain stubborn, Alex did not seem to appreciate the power of a truthful, negative review of his company online. “Alex, your employee set off this nightmare, so why not be a good guy and fix it?” I asked.
“So, what do you recommend?”
“You have two choices: the two of you work out a compromise, or wind up in court, all over the $1,600 required to purchase a new oven. I am getting off the call and letting you two resolve it.”
And they did, less than $1,600, but a good compromise is where everyone goes away a little disappointed.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.