Court Says “Judicial Deference” Rule Protects Association’s “Good Faith Decisions”

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.”

Association’s 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, Association’s 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: