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United We Stand, Separate Interests We Sue?

HOABy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA Continuing my theme of misquoted quotes and special rules for HOAs, let's talk about the individual unit owners. The HOA can be sued for issues in the common areas that lead to injuries or damage. What about the person who owns the unit near the common area? Doesn't he also -- as a tenant in common of the condominium project -- own an interest in that common area? Can he be sued as well? Ordinary principals of duty would suggest he could be. Take the prior case example about the unit owner that installs lights as an additional security measure to ward off crime she knows is happening near her unit. What if she knew about that burgeoning crime and did not take action? One factor mitigates attaching liability and it is the one that got the HOA in trouble in that case. We know it, right people? Control. In most cases, the owner of the "separate interest" -- i.e., the adjoining unit -- is not allowed to put anything in the common area. This is true even though the unit owner technically owns a piece of the common area by virtue of her ownership of the individual unit. This unit owner tried to effect a security measure in the common area and was rebuked by the HOA and one of its members. So it seems likely on that basis for the unit owner not to be sued. (There it was, the ......
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