• Land Use Attorney Capitola

A Homeowners Association Is Not Entitled To A Refund Of Sewer Service Fees Paid For Water To Irrigate Common Area Landscaping Despite A Lack Of Connection To Municipal Sewer Service.

In Cape Concord Homeowners Ass’n V. City of Escondido, (2017) 7 Cal. App. 5th 180, the Court of Appeal held that the Homeowners Association (“HOA”) was not entitled to a refund of service fees paid for water used to irrigate common landscape areas despite the fact that the water used for irrigation was not connected to the City of Escondido’s (“City”) sewer system.

In this case, the City supplied the HOA with water through a single water meter from 1980 through 2012. In 2006, the City began billing the HOA for sewer services where the billing rate was based on the amount of fresh water that flowed through that meter. The HOA used some of that water for the community swimming pool and related bathroom facilities. These facilities were connected to the City’s sewer system. However, approximately 97% of the water was used for irrigating common landscape areas. In 2012, it was determined by the City that these irrigation areas were not connected to the sewer system. Therefore, at the request of the HOA, the City installed a second meter for water that was used exclusively for irrigation purposes.

The HOA subsequently sued the City under Government Code section 53082 for a refund of the sewer service fees paid for the water used for irrigating the common landscaping area from 2006-2012, for which no sewer services were provided.

In pertinent part, Government Code section 53082 provides that a local agency must refund sewer service fees paid for which no sewer services were provided. (Gov. Code, § 53082(b).) Where a person paid such fees and is still residing at the same location, the local agency is required to refund such fees “in their entirety” upon determining “the premises is not connected to the sewer system.” (§ 53082(c).)

The Court of Appeal, affirming the trial court’s decision, concluded that Government Code section 53082 did not apply in this case because during the period the property was supplied by a single water meter (1980-2012), the entire “premises,” including the landscaping areas, were in fact connected to the City’s sewer system.  The Court explained that “premises” under section 53082 must be defined with respect to the existence of sewer service for the portion of property supplied by a single water meter, not by the user’s choice of how to use the water supplied. Therefore, the HOA was not entitled to a refund of sewer fees despite the fact that 97% of the water used was not connected to the sewer system because 100% of the HOA’s property was supplied by a single water meter.

The lesson for HOAs that are billed for sewer services based on the amount of water used is to immediately check to see how much of the water flowing through water meters is connected to the municipal sewer system. If a portion of the water is not connected to the sewer system (like the irrigation water here), HOAs should request an additional meter be installed to provide water not connected to the sewer system to avoid being charged a higher billing rate.

©2017 Miles J. Dolinger.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

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