This case involved a dispute between homeowners (Owners) and their homeowners association (Association) over the method of repairs chosen by Association to a wall and subsiding common area slopes that were causing damage to Owners adjacent properties.

Commencing in 2004, Association became aware of slope subsidence in the area adjacent to Owners properties. Association retained consultants to investigation the problem and filed suit against the developer of the property seeking damages for excessive slope creep, slope movement and subsidence. Association continued investigating the nature and extent of the slope problems for several years and received input from its engineering consultant that the slope movement was decreasing over time and was near the end of its creep cycle.

Associations lawsuit against the developer was settled in 2011 for $300,000.00. When considering the nature and extent of repairs, the consultant advised Association that a perfect repair procedure would be to install a very costly new caisson-supported wall and grade beam system at the top of the slope, but it was not necessary to go to such a costly, disruptive repair for slopes that were inherently stable and near the end of the creep cycle. A less costly alternative for repairing the walls was presented that consisted of filling the separations with non-shrinking grout, cosmetically patch, texture coat, and paint the walls every few years. Association concluded that the cosmetic repairs were the economically feasible solution since constructing new walls supported by caissons was estimated to cost over $4,000,000.00. Thus, Associations plan of action regarding the repairs was to periodically make cosmetic repairs of new cracks and separations if, and when, they developed.

In 2017, Owners filed suit against Association for damages to their property claiming that Association negligently failed to maintain the common area slope as required by Associations CC&Rs and, as a proximate result, the common area slope failed in or about January of 2017, and caused substantial damage to their properties. The trial court granted summary judgment in favor of Association on the grounds that the judicial deference rule barred Owners claims. Owners then appealed contending that the trial court erred in applying the judicial deference rule to protect the actions of Association.

On review, the appellate court ruled that the judicial deference rule protects a homeowners associations good faith decisions to maintain and repair common areas. The court noted that Association was faced with two choices: (i) adopt a prohibitively expensive course of action; or (ii) make repairs on an as needed basis. After carefully weighing the alternatives and giving primary concern to the best interests of Association and its members, Associations board of directors chose to go with the less costly cosmetic repairs as needed. In affirming the trial courts judgment, the appellate court said it was appropriate for the court to defer to the boards authority and presumed expertise.

UNPUBLISHED California Appellate Court decision (November 1, 2019)

See case decision: Jongerius_v._Sun_Lakes_Country_Club_Homeowners_Ass’n