Suing HOA for Negligence – When can I do it?

You can sue a homeowner’s association (HOA) for negligence if it fails to uphold its legal obligations and you suffer losses as a result. This often happens if the HOA does not adequately maintain common areas and you get injured.

The written rules and covenants of the HOA determine its specific obligations and legal duties.

Can an HOA commit negligence?

Yes, HOAs can commit negligence.

Under personal injury law, negligence has 3 elements:

1. the defendant had a legal duty of care,
2. the defendant breached that duty of care, and
3. that breach caused the victim’s harm.

The legal duties of care that HOAs have are generally laid out in their governing documents. These documents are usually the HOA’s:

• articles of incorporation,
• bylaws, or its
• declaration of covenants, conditions, and restrictions (also known as the “declaration” or a “CC&R”).

These documents state what the HOA is responsible for doing. Some of the most common requirements for an HOA include:

• maintaining common areas,
• providing lawn care,
• removing fallen trees,
• providing and fixing sprinklers in common areas,
• plowing the parking lot or the street of the complex,
• maintaining equipment in the complex’s shared gym or pool,
• shoveling snow from walkways or sidewalks,
• sanding or salting ice on walkways,
• repairing outdoor light fixtures or replacing light bulbs, and
• maintaining elevators.

However, the terms of the specific HOA will matter. Some associations are held responsible for more than others. The particular language used in the HOA’s relevant documents will also matter a lot. If the HOA’s governing documents use vague language that does not create very specific responsibilities, it can be harder to show that the HOA had a legal duty to act.

States generally hold HOAs to the standard of care of a landlord for these duties. California law is one example of this standard of care.¹

If the HOA fails to perform one of these duties and that failure causes you to get hurt or suffer damages, you may have grounds to sue the HOA for its negligence.

What are some examples?

Some hypothetical examples of an HOA getting sued for negligence include if the HOA:

• does not de-ice a sidewalk in the complex and you slip and fall and get hurt,
• fails to take precautions against a dangerous dog on the property and you get attacked,
• does not cut down a dead tree for months, which then falls onto your roof during a storm,
• neglects to maintain an elevator and you get hurt in an elevator accident,
• does not plow the parking lot, causing your car to skid and create a car accident, and
• does not replace the lights that have gone out in the complex’s parking lot and you get robbed by someone who uses the darkness to commit the crime.

The resulting HOA lawsuit alleges that reasonable care was not taken to prevent the harm in each of these examples.

Again, though, the specific terms of the HOA’s governing documents can mean that the association does not have some of these legal duties to uphold.

What is a homeowner’s association?

A homeowner’s association, or HOA, is a self-governing organization of homeowners. Each homeowner pays a fee, or a due, to the HOA. The HOA can also impose assessments to fund certain projects. In return, the HOA acts in the common interest of the group. The organization creates rules of conduct for itself and in good faith undertakes community roles in order to:

• enhance the visual appeal of the community,
• increase the value of the real estate in the community,
• provide bulk services that would be time-consuming or expensive for property owners to perform individually, and
• maintain HOA common areas that fall outside the property lines of the individual owners.

HOAs are sometimes known as a community association or a condominium association. They are especially common in condominium complexes.

Are there other situations where a HOA can be sued?

There are numerous situations where a homeowner’s association can get sued. Some of the most common are:

• breach of contract for not making repairs,
• breach of fiduciary duty to the homeowners for not enforcing the rules laid out in the HOA’s governing documents,
• breach of covenant, if the HOA is not following the rules in its governing documents,
• misappropriation of funds paid by homeowners,
• harassment,
• discrimination, often for the selective enforcement of HOA rules on certain residents and not on others, and
• remodeling disputes.

Many of these cases go through small claims court. Others are handled through alternative dispute resolution methods. In many cases, association rules require mediation or arbitration. Only if this fails can a legal action be filed.

Will the HOA board members be held liable?

Generally, the individual HOA board members will not be held personally liable for the negligent actions of the association. In these cases, the HOA itself would be liable and would pay damages out of its account or through its insurer. However, board members can be held liable for their illegal acts or their personal negligence while doing HOA business.

Some examples where an HOA dispute can leave a member of the association’s board of directors open to personal liability are if he or she is:

• embezzling money from the HOA’s fund for upkeep,
• using HOA dues for personal expenses,
• self-dealing, like hiring a property management company that they own at above-market rates to provide lawn care, or
• abusing their position for community perks, like specialized landscaping for their property.