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CCOC Decision Summary

#673-O, Smart v. Pooks Hill Condominium, Inc. (December 15, 2004) (Panel: McCabe, Smith, Kivitz)

The homeowner (HO) complained that her condominium association (CA) had entered into an invalid contract with a pest control service, and that when it rebuilt a retaining wall it buried a downspout drain line, causing flooding in her unit, and that she wanted compensation for the damage.However she refused to let the CA enter her unit to inspect the damage.

The hearing panel held a public hearing on the disputes.The evidence showed that the CA's pest control contract only provided for treatment of pests such as termites after an infestation was discovered but did not include treatment to prevent an infestation. Prevention of a pest infection was thus the unit owner's responsibility. It also showed that in the course of rebuilding a retaining wall located between the HO's unit and her down-slope neighbor's unit, the CA changed the grade on both lots, and buried a plastic pipe connected to the HO's downspout that ran to the sidewalk in front of the house.It further appeared that the plastic pipe then became clogged with debris washed down from the gutters, and it could have backed up and caused flooding into the HO's unit; the changes in the grade could also have contributed to a flood.

The hearing panel ruled that the decision of the CA's board of directors to purchase a pest treatment contract instead of a more costly pest prevention contract was a "business judgment" decision, and in the absence of proof of fraud, bad faith, or lack of authority, the courts and the hearing panel will not overturn a legitimate business decision.The panel therefore denied this claim.

On the drainage issue, the hearing panel ruled that the CA could not force the HO to bury the drain line because the CA had no clear policy on whether such lines must be buried; in addition, the rules require homeowners to maintain such lines.Therefore the panel ruled that so long as the HO is required the maintain the line, the CA cannot require her to bury it. The panel further ordered the CA to investigate the drainage of both the HO's property and the neighbor's property and take any action necessary at its own expense to establish a proper flow of water away from the units.Finally, the panel ordered the HO to allow access to her unit within 30 days so that the CA could inspect for damage and file an insurance claim if necessary.

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