*Asked & Answered
Asked – Our HOA Board of Directors has become aware of a potential issue with the fire resistive construction in the walls between two condominium units. The Board is split on whether notice to the membership as a whole is warranted at this time, prior to the conclusion of the investigation, given that this potential issue affects a life safety system. Half of us feel that the issue is only technical in nature, while the other half believes that any potential issue should be communicated to the membership. We do not want to unnecessarily alarm the membership or incur thousands of dollars investigating the issue throughout the community if it is not significant, but at the same time we do not want to expose the Board or Association to a risk of liability.
Answered – The Board, as fiduciaries to the Association, is obligated to rely on subject matter experts in situations such as these. (Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783.) If the components in question fall within the scope of the Association’s repair responsibilities, the Association has a duty to retain experts to investigate the matter. Given the technical complexity of fire resistive construction systems, and the potential life safety implications, the Association should specifically ask their retained expert to evaluate and comment on whether membership notification of the issue is warranted at this time or whether further investigation is required. Often times, technical violations may exist that do not impair the overall performance of the system, but the Board should not rely on their own intuition or experience to make that determination. Such decisions can only be made after expert recommendations are provided and reviewed by the Board.
|While a court will defer to a board’s discretion in its decision making, that deference will only apply if the board conducted a reasonable investigation and relied on the advice of experts. (Lamden v. La Jolla Shores Clubdominium Homeowners Association (1999) 21 Cal.4th 249.)|
-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.