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The Royal Society for Putting Things on Top of Other Things

Horseback RidersBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA From time to time, a property owner or possessor will give permission to others to use or rent out parts of her property and put things on it. A soda machine, a vending machine, a gas line, or even a pipe trestle. Those who use that land in this manner have a duty of care to third parties to prevent injury. The same duty that the possessor has. Here is a fun fact pattern. The land possessor runs a horse farm. He rents out horses to be ridden on the property. A customer asks for a mild horse. The land possessor gives the customer what he believes to be a mild horse. The customer takes said horse out for a ride. Said horse is not mild. Said horse goes where it wants to go and takes the customer along with him. Injury ensues: "Plaintiff and his wife rode under the trestle along the indicated road, with plaintiff's horse in the lead. After proceeding about 400 feet to the north at a walk, plaintiff turned his head to the left and called to his wife. As he made this movement, plaintiff's horse suddenly reeled about to the left and began racing back on the road toward the trestle, gaining speed as it went. Plaintiff attempted in vain to control or stop the horse by pulling back on the reins as hard as he could with both hands, but the horse kept going......
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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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