White

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 area of Merrywood.-The trial court sustained Merrywood’s demurrer without leave to amend and entered judgment of dismissal. 1 White appeals.

*826 The question here is whether a member of an unincorporated association of condominium owners may bring an action against the association for damages caused by negligent maintenance of the common areas in the condominium project. In contesting the propriety of such an action defendant association argues that because it is a joint enterprise each member is both principal and agent for every other member, and consequently the negligence of each member must be imputed to every other member. Hence, its argument goes, a member may not maintain an action for negligence against the association because the member himself shares responsibility as a…

I concur.

I agree that a member of an unincorporated association of condominium owners may sue the association in tort. (Code Civ. Proc., § 388.) However, the majority opinion fails to define or distinguish the extent to which individual unit owners in a condominium project may become liable to another unit owner or to a third person for tortious conduct arising in the common areas of the condominium project. In footnote 3, the majority declines to hold on “what property execution may be levied to satisfy a judgment against the condominium and the condominium association."

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 case 1 nor is the basis of the liability of parties other than the association, to wit, Merrywood Apartments.

*832 The ownership of the common areas in a condominium project is vested in the individual unit owners as tenants in common. (Civ. Code, § 1353, subd. (b).) Thus, even though, as the majority holds, the association may be sued in its…

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 area of Merrywood. The trial court sustained Merrywood's demurrer without leave to amend and entered judgment of dismissal. [1] White appeals.

The question here is whether a member of an unincorporated association of condominium owners may bring an action against the association for damages caused by negligent maintenance of the common areas in the condominium project. In contesting the propriety of such an action defendant association argues that because it is a joint enterprise each member is both principal and agent for every other member, and consequently the negligence of each member must be imputed to every other member. Hence, its argument goes, a member may not maintain an action for negligence against the association because the member himself shares…