Association Does Not Have to Stop Water Intrusion Into Condominium Units

In an unpublished opinion, the California Court of Appeals, relying on the Supreme Court?s decision in Lamden, upheld a trial court ruling that a condominium association, acting in good faith and in the best interests of the community, can decide not to take action to stop water from intruding or leaking into a unit due to construction defects in common areas…

During discovery, testing conducted by experts revealed that initial construction of the condominiums was defective in that a below-grade drain was installed upside down at the wrong depth. The defect allowed water to seep under the retaining wall and concrete slab into the garage and bonus room area when the soil outside the Calemines? building became saturated. The work necessary to correct the defect would take about six months to complete and was described as a major project that would involve removing landscape and hardscape. Estimates for the cost of the work ranged from $270,000 to $429,000 without any guarantee that further water intrusion would be prevented. Estimates for the additional cost to repair the interior of the Calemines? condominium ranged from $33,000 to $45,000.

The trial court ruled in favor of the association and found that the Calemines failed to offer evidence of damages to support their claims that they were entitled to injunctive relief. Applying the rule of judicial deference defined in Lamden v. La Jolla Shores Clubdominium Homeowners Association, 21 Cal. 4th 249, 87 Cal. Rptr. 2d 237, 980 P.2d 940 (1999), the trial court found that the Calemines failed to offer evidence of damages to support their tort claims and to establish a right to enjoin the association’s reasonable and good faith decision. The court noted that the history of prior repairs demonstrated the association’s sincere desire to solve the problem. The trial court also determined that the decision whether to provide any additional waterproofing was a decision best left to the discretion of the board. The Calemines appealed.