RONALD F. WHITE, Plaintiff and Appellant, v. DONALD W. COX, Defendant and Respondent.
Civ. No. 37103.
Second Dist., Div. Two.
May 24, 1971.
17 Cal. App. 3d 824
Hafif & Shernoff and Stephen L. Odgers for Plaintiff and Appellant.
Staitman & Snyder and Jack M. Staitman for Defendant and Respondent.
OPINION
FLEMING, J.---Plaintiff White owns a condominium in the Merrywood condominium project and is a member of Merrywood Apartments, a nonprofit unincorporated association which maintains the common areas of Merrywood. In his complaint against Merrywood Apartments for damages for personal injuries White avers he tripped and fell over a water sprinkler negligently maintained by Merrywood Apartments in the common areа of Merrywood. The trial court sustained Merrywood‘s demurrer without leave to amend and entered judgment of dismissal.1 White appeals.
We first considеr the present status of an unincorporated association‘s liability in tort to its members. In Marshal v. International Longshoremen‘s & Warehousemen‘s Union, 57 Cal.2d 781 [22 Cal.Rptr. 211, 371 P.2d 987], the court ruled that a member of a labor union organized as an unincorporated association could sue the union for negligent acts which the member had neither participated in nor authorized. The court said: “Under traditional legal concepts the partnership is regarded as an aggregate of individuals with each partner acting as agent for all other pаrtners in the transaction of partnership business, and the agents of the partnership acting as agents for all of the partners. When these concepts are transferred bodily to other forms of voluntary associations such as fraternal organizations, clubs and labor unions, which act normally through elected officers and in which the individual members have little or no authority in the day-to-day operations of the association‘s affairs, reality is apt to be sacrificed to theoretical formalism. The courts, in recognition of this fact, have from case to case gradually evolved new theories in approaching the problems of such associations, and there is now a respectable body of judicial decision, especially in the field of labor-union law, with which we are here directly concerned, which recognizes the existence of unincorporated labor unions as separate entities for a variety of purposes, and which recognizes as well that the individual members of such unions are not in any true sense principals of the officers of the union or of its agents and employees so as to be bound personally by their acts under the strict application of the doctrine of respondeat superior.”
In effect, the court found that the traditional immunization of an unincorporated association from liability in tort to its members rested on two supports: (1) an unincorporated association lacks a legal existence separate from its members; (2) each member exercises control over the operations of the association. But the court observed that these supports no longer carried the persuasiveness they once did, and it quoted from its opinion in
Since Marshall in 1962 the rule of non-liability of an unincorporated association to its members has suffered further erosion from both statutory and case law. Under amendments to the Corporations Code in 1967 an unincorporated association, defined as “any partnership or other unincorporated оrganization of two or more persons” (
Since 1962 the trend of case law has flowed toward full recognition of the unincorporated association as a separate legal entity. A member of an unincorporated association does not incur liability for acts of the association or acts of its members which he did not authorize or perform. (Orser v. George, 252 Cal.App.2d 660, 670-671 [60 Cal.Rptr. 708].) A partner in a business partnership has been allowed to mаintain an action against the partnership for the loss of his truck as a result of partnership negligence. (Smith v. Hensley (Ky.) 354 S.W.2d 744 [98 A.L.R.2d 340].) In the
In view of these developments over the past decade we conclude that unincorporated associations are now entitled to general recognition as separate legal entities and that as a consequence a member of an unincorporated association may maintain a tort action against his association.
Does this general rule of tort liability of an unincorporated association to its members apply in the specific instance of a condominium? A brief review of the statutory provisions which sanction and regulate the condominium form of ownership will clarify the nature of what we are dealing with. A сondominium is an estate in real property consisting of an undivided interest in common in a portion of a parcel of real property together with a separate interest in another portion of the same parcel. (
The original project owner must record a condominium plan (
California‘s condominium legislation parallels that of other jurisdictions (see Ferrer & Stecher, Law of Condominium (1967)), and a review of this legislation brings out the two different aspects of the typical condominium scheme. (1) Operations. These are normally conducted by a management association created to run the common affairs of the condominium owners. The assоciation functions in a manner comparable to other unincorporated associations in that it is controlled by a governing body, acts through designated agents, and functions under the authority of by-laws, etc. (the plan). In this aspect of the condominium scheme the management association of condominium owners functions as a distinct and separate personality from the owners themselves. (2) Ownership. In its system of tenure for real property the condominium drаws elements both from tenancy in common and from separate ownership. Tenancy in common has also been brought into the structure of the managment association, for under
Our answer to the first question derives from the nature of the condominium and its employment of the concept of separateness. Were sеparateness not clearly embodied within the condomium project the unit owners would become tenants in common of an estate in real property and remain exposed to all the consequences which flow from such a status. We think the concept of separateness in the condominium project carries over
For answer to our second question we turn to the statutory scheme, whence it clearly appears that in ordinary course a unit owner does not directly control the activities of the management body set up to handle the common affairs of the condominium project. To illustrate from the facts at bench: White owns his individual unit and a one-sixtieth interest in the common areas of Merrywood. An administrator controls the common affairs of Merrywood and maintains the common area where White tripped over the sprinkler. The administrator is appointed by and responsible to a board of governors. The board of governors is elected by the unit owners in an election in which each owner has one vote, owners vote by proxy, and cumulative voting is allowed. Whitе is not a member of the board of governors. The Merrywood condominium plan succinctly warns, “In case management is not to your satisfaction, you may have no recourse.” To use the language of the Marshall opinion, we would be sacrificing reality to theoretical formalism to rule that White had any effective control over the operation of the common areas of Merrywood, for in fact he had no more control over operations thаn he would have had as a stockholder in a corporation which owned and operated the project.
With respect to the elements deemed critical in Marshall we find no substantial distinction between a condominium and a labor union. A condominium, like a labor union, has a separate existence from its members. Control of a condominium, like control of a labor union, is normally vested in a management body over which the individual member has no direct control. We conclude, therefore, that a condominium possesses sufficient aspects of an unincorporated association to make it liable in tort to its members. The condominium and the condominium association may be sued in the condominium name under authority of
The judgment of dismissal is reversed.
Compton, J., concurred.
ROTH, P. J.---I concur.
I agree that a member of an unincorporated association of condominium owners may sue the association in tort. (
When as at bench a judgment of dismissal entered after a demurrer without leave to amend has been sustained the question of levy of execution may not be properly before this court. However, the question of the identities of the parties liable is not settled in this case1 nor is the basis of the liability of parties other than the association, to wit, Merrywood Apartments.
the lien of the fraction of the total sum secured by such lien which is attributable to his condominium.”
It could be implied from the sense of the section that a condominium owner may satisfy his portion of any liability arising out of the operation of the condominium project by the payment of his proportionate share of the liability. Such a conclusion would conform to what has been written on the subject by text writers (Rohan and Reskin, Condominium Law and Practice (1970), ch. 10A, and 4 Powell on Real Property, § 633.25), and parallels what has been achieved by statute in other states. Alaska, Massachusetts, and Washington provide that a cause of action in tort relating to the common areas may be maintained only against the association of apartment owners. A judgment lien becomes a common expense and is removed from an individual condominium upon payment by the individual owner of his proportionate share. (
A comparative study of California condominium legislation with that in other states shows that the question of the individual unit owner‘s tort liability in cases arising in the common areas has not been regulated by statute. The majority‘s suggestion that
One practiсal answer is, of course, insurance taken out by the association to cover liability in respect of the common areas. (See Kerr, supra, at p. 43.)3 It might then be argued depending on the terms of the written declaration between unit owners that, at least as between suing and defendant unit owners, the maximum amount of liability of defendant unit owners has been contractually limited to the maximum of the insurance taken out by the association.
The permit, after setting forth the plan of management and powers of the board of governors, sets forth in pertinent part that the board of governors shall have the power to: “Contract and/or pay for fire, casualty, liability and other insurance and bonding of its members, maintenance, gardening, utilities, materials, supplies, sеrvices and personnel necessary for the operation of the project, taxes and assessments which may become a lien on the entire project or the common area, and reconstruction of portions of the project which are to be rebuilt after damage or destruction;”
The above excerpt or summary (in the permit) from the declaration is substantially similar to the powers set forth in
It occurs to me, therefore, on the limited record before this court that each unit holder of the project has by contract delegated to the board of governors which operates the project the power and responsibility to obtain adequate liability insurance for the project to cover claims of third persons and also adequate insurance to cover negligence actions of unit owners against the association and actions which any unit owner might bring against other unit owners because of the negligence of the association.
It seems to me therefore that any failure by management to obtain adequate insurance or any insurance leaves a unit holder injured by negligence of management, (as distinguished from independent negligence of a fellow unit owner) with the right to proceed against the association to the extent of its insurance if any and with no right to proceed against other unit owners. A suit by one other than a unit owner is a question not raised by the litigation at bench, and cannot be similarly circumscribed. Generally, tenants in common may be joined as defendants and their liability is joint and several (
A petition for a rehearing was denied June 21, 1971, and respondent‘s petition for a hearing by the Supreme Court was denied July 21, 1971.