August 31, 2015

New Florida Law Regarding Fining and Suspending Use Rights Tells Us That They Do It Differently

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

hoa_fines_and_penalties_-_Google_Search.pngIf you thought that the laws in other states regarding condos and HOAs were the same as ours, you were way wrong. And that is certainly the case when it comes to fining and/or penalizing owners for violations. On July 1, 2015, new provisions which clarify the procedures in Florida for fining and use right suspensions for non-monetary violations became effective. An article by Florida community association attorney Jeffrey Rembaum describes this new law.

The term “non-monetary violations” refers to violations such as failing to pressure clean roofs (seriously?) and driveways, to remove dead trees, to bring in the garbage cans and to pick up after your pet, etc., and excludes penalties for delinquent payment of assessments.

According to Rembaum, “[t]hese new provisions were put into place to clarify the manner in which an association’s board of directors and its fining and suspensions committee coexist. Prior to these provisions, there were some who were unsure as to whether the fining and suspensions committee would first meet and then the board of directors would levy the fine, or if the board of directors would first meet, determine the amount of the fine, and then the fining committee would meet to provide the offending owner with the opportunity to be heard. Now, it is patently clear. The board must take action first.”

Continue reading "New Florida Law Regarding Fining and Suspending Use Rights Tells Us That They Do It Differently " »

August 31, 2015

Support Tracy R. Neal for Re-election to the CAI-Channel Islands Board of Directors

0f38fa82-181f-4a75-9174-048186cf72bd.png Are you a member of the Channel Islands Chapter of Community Associations Institute? We understand ballots for their annual board election will be arriving soon, so please support Tracy in her bid for re-election.

Tracy R. Neal is the Vice President and Supervising Attorney for Association Lien Services. She is a member of the Channel Islands Chapter and currently serves as the Chapter's Vice-President. Tracy can be spotted at most monthly luncheons near the door greeting attendees, chatting with Board members, managers and business partners, and at the Channel Islands Chapter's Managers Program where she has served as a co-chairperson for four of the past five years. Tracy represents ALS in its business partnership with the Channel Islands Chapter, often sponsoring and exhibiting at luncheons and the Chapter's annual community faires. Tracy is an industry educator on the non-judicial foreclosure process, assessment collections, bankruptcy, Board fiduciary responsibilities and hierarchy of laws. She frequently speaks at CAI chapter programs throughout California, including Channel Islands.

Tracy would very much like to continue to expand her commitment and service to the Channel Islands Chapter, helping the Chapter continue its growth and success, so she is asking for your vote for re-election to the Channel Islands Board of Directors. Thank you!

August 27, 2015

New FHA/VA Disclosures Required in California Condo Annual Budget Reports

By Sandra L. Gottlieb, Esq., Senior Partner and Mark Petrie, Marketing Coordinator at SwedelsonGottlieb

FHA.jpgOn August 12, 2015, Governor Brown signed AB 596, which adds the following two new required disclosures to the Annual Budget Report for California condominium associations (this does not include planned developments or other common interest developments).

(10) When the common interest development is a condominium project, a statement describing the status of the common interest development as a Federal Housing Administration (FHA)-approved condominium project pursuant to FHA guidelines, including whether the common interest development is an FHA-approved condominium project. The statement shall be in at least 10-point font on a separate piece of paper and in the following form:

“Certification by the Federal Housing Administration may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest.

This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the Federal Housing Administration.”

(11) When the common interest development is a condominium project, a statement describing the status of the common interest development as a federal Department of Veterans Affairs (VA)-approved condominium project pursuant to VA guidelines, including whether the common interest development is a VA-approved condominium project. The statement shall be in at least 10-point font on a separate piece of paper and in the following form:

“Certification by the federal Department of Veterans Affairs may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest.

This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the federal Department of Veterans Affairs.”

Continue reading "New FHA/VA Disclosures Required in California Condo Annual Budget Reports" »

August 20, 2015

Good Fences and Bad Neighbors Impacting Your Homeowners Association

By David Swedelson, Partner at SwedelsonGottlieb, California Community Association Attorneys

good_neighbor_fences_-_Google_Search.pngYour community association prides itself on how beautiful and well maintained the common area is. But the owner of the neighboring apartment/condominium/home/property is from Planet “Who Cares”. The fence that borders your property is an eyesore, and the neighboring property owner refuses to talk to the board or management about the situation. Is there anything you can do? This situation is more common than you might think, and the answer is yes!

On January 1, 2014, the California Legislature updated Section 841 of the California Civil Code regarding “good neighbor” fences, a common fence dividing two properties. The original law, in place since the 1870s, simply provided that both owners were mutually responsible for common fences. As a practical matter, if your neighbor paid to put up a fence, you were obligated to reimburse your neighbor for one-half of the “reasonable cost” of that fence. If you paid to put up the fence, your neighbor had to reimburse you. As for how to agree on the cost of the fence and how to collect your half, the law was silent. You were on your own.

The good news is that the new law does address these issues, and with more specificity. The 2014 law, like the 1870s law, operates on the presumption that neighbors benefit equally from a common fence, and that the cost for building or fixing a common fence should be shared equally even if the fence is on the neighbor’s property. But the 2014 law doesn’t stop there. It goes into detail, outlining a step-by-step process for erecting or repairing a common fence, and explains exactly how to recover half of the cost. The law also lays out exceptions to the equal-benefit, equal-cost assumption.

Continue reading "Good Fences and Bad Neighbors Impacting Your Homeowners Association" »

August 19, 2015

New Requirements for Pools at Your Common Interest Development

pool.jpgYes, it's true, California now requires associations with 25 or more separate interests that have a "public pool" must follow new (2015) daily and monthly testing requirements for the pool water. (Associations with less than 25 separate interests still have to test at least two times per week and at intervals no greater than four days apart.) There are no exceptions for homeowners associations; rather, the statute includes homeowners associations in the definition of "public pools". Although associations of all sizes should ensure compliance with the entirety of the Pool Maintenance and Operation requirements of the California Code of Regulations, the big ticket obligations are as follows:


1. New parameters for water characteristics
2. Strict monitoring of public pool facilities (daily if 25 or more separate interests) and requirements for written records
3. Enforcement of specific safety and first aid equipment
4. Requirements that newly constructed public pool enclosures have at least one keyless exit and self-closing latches
5. Imposition of health restrictions for employees or pool users.

As mentioned above, associations with 25 or more separate interests are now obligated, on a daily basis, to test pool and spa/jacuzzi water and to keep a log of the testing daily. Testing can be done automatically if local enforcing authorities allow for same; otherwise, the manual test results must be maintained onsite as part of the association's written records for at least a two-year period.

Other significant issues deal with the installation and maintenance of safety and first aid equipment, which, at a minimum, should include a rescue pole and a 17-inch minimum diameter life ring with a 3/16-inch diameter throw rope attached.

Also be aware that there are specific requirements for at least one pool enclosure which allows for egress, without a key, for emergency purposes. If all gates for egress allow for keyless exit, no special signage is necessary, but if not, then the non-key exit gate must have signage, in four-inch letters which states EMERGENCY EXIT.

And finally, health restrictions - last year, it was diarrhea, and this year, pool access is further limited for any person, including pool monitors, if they have infectious conditions such as a cough, cold sore, nasal or ear discharge or wear a bandage.

Needless to say - safety first! Make sure you are and remain compliant.

July 30, 2015

Senior Partner Sandra Gottlieb Will Present at Three CAI Events this August Throughout Southern California!

Sandra_Gottlieb-square.jpg
Don't miss these essential educational opportunities for association directors and their managing agents. We want to ensure you stay informed about the latest state requirements and best practices for governing and managing your association.

Information on each event held by the Community Association Institute's Greater Los Angeles Chapter, Channel Islands Chapter, and Orange County Regional Chapter follows below.

CAI-Greater Los Angeles Chapter
The Ins and Outs of Board Elections
August 4, 2015, 6:30 p.m.
Regatta Seaside Homeowners Association
13600 Marina Pointe Drive, Marina Del Rey

This seminar is FREE to HOA Board members and managers that preregister.

-Are you meeting the legal requirements for elections at your association?
-Do you know which votes are required to be held by secret ballot?
-Are you risking a challenge to your elections and/or liability you didn't know about?
-What if nobody wants to run for the Board?

Get answers to these questions and more as Sandra provides a full explanation of everything you need to know about properly holding elections at your association.
_____________________________________


CAI-Channel Islands Chapter
Managers' Townhall: #NowTrending
August 11, 2015, 11:30 a.m.
Courtyard Marriott, Oxnard

Please note this event is for community managers only.

This Managers' Program is an opportunity to discuss common interest development trending topics and exchange ideas with manager peers as Sandra assists as a moderator in exploring and finding common ground on such topics as these popular hashtags:

#Avoid Getting Burned by a Contractor
#Dealing with Criminal Activity
#Social Media Exposure
#Hostile Work Environments
#Board member Releases Confidential Information
#ADR Requests
#Requests for Records
#Failure to Enforce Governing Documents
#Enforcing Nuisance Restrictions
#Partial Payments
#Artificial Turf
#Your Own Topics (as time allows)
_____________________________________


CAI-Orange County Regional Chapter
The Elephant in the Room: Conflict of Interest, Bullying and More
August 20, 2015, 11:30 a.m.
Irvine Marriott

This event is open to Board members and managers.

-Dealing with bullies on the Board
-Statutory (and non-statutory) conflicts of interest
-"Rogue" Board members
-Directors who micromanage other directors and managers

Do you feel you don't have the necessary tools to deal with a problematic Board member? Sandra will help arm you with the authority provided by state statute and knowledge of the actions you can take to protect your association.

July 7, 2015

Compton Fire Department Ordered To Remove Defibrillators From Trucks, Ambulances And This Is Why Your Association Should Reconsider Maintaining A Defibrillator

Posted by David Swedelson, senior partner at SwedelsonGottlieb, Community Association Attorneys

defibrillator_-_Google_Search.pngThe Los Angeles Times reports that “most fire trucks and ambulances run by the Compton Fire Department have been stripped of defibrillator machines, a crucial lifesaving device that rescuers use to deliver a shock and try to restart the heart of cardiac arrest victims.” “County regulators ordered the department to remove the devices last week after fire officials were unable to produce documentation showing Compton firefighters had been properly trained to use the equipment.”

To read the rest of the Times article, follow this link.

The article quotes the head of the Los Angeles County Emergency Medical Services Agency as saying: "If they aren't going to follow directions and it's not going to be a safe use of the equipment then you have to put a stop to the program."

It is for these very reasons that we have been saying for a long time that it would be a mistake to require that California community associations maintain defibrillators. Most condo and HOA gyms are not staffed. It is likely that no one will remember to service the equipment. Without maintenance and staff who know how to operate the defibrillator, there is no guarantee that the equipment will work when needed. And among other things, this could result in lawsuits that could potentially exceed the association’s insurance coverage.

It is for these reasons that the California legislature has not mandated that community associations maintain defibrillators. If your association maintains a defibrillator, the board needs to consider the factors referenced above. Maybe the cons of having a defibrillator outweigh the benefits.

David Swedelson is a condo lawyer and HOA attorney. He can be contacted via email: dcs@sghoalaw.com.

May 18, 2015

Warrantless Drug-Sniffing Dogs Can Enter Condominium Common Area — In North Dakota

drug_sniffing_dogs_-_Google_Search-1.pngIf you live in a condo in North Dakota and are into illegal drugs, be advised that it is OK for the police to bring drug-sniffing dogs into your association's common area without a warrant, according to the North Dakota Supreme Court (follow this link to read the full opinion).

As summarized by a newspaper article, the North Dakota Supreme Court made this the law in their posted opinion that rejected an appeal by a West Fargo man who “was arrested for possession of marijuana with intent to deliver after police brought Disco the dog into a common hallway that [he] shared with another resident in the condo. Police say they received a tip that pot was being sold out of the residence." Although not made clear in the article, the dog alerted its handlers to the presence of drugs behind the condominium door, and the officers obtained a warrant before searching the condominium.

The trial judge denied a motion to exclude the evidence that argued that it was an unreasonable search and seizure. “The Fargo lawyer had argued that the hallway in the condo should be considered curtilage, or part of the home, and that gave Williams an expectation of privacy.” The ND Supreme Court stated in its 5-0 ruling that the common areas of a multi-family dwelling are not protected by the Constitution, and the search was legal, stating that “. . .we conclude the condominium building's common hallway was not curtilage, and [the resident] had no expectation that the shared space would be free from any intrusion".

April 17, 2015

HOA Approval Requirements For Solar Systems Have Changed; Is Your California Homeowners Association Complying With The New Law?

solar-energy-santa-rosa.pngRegular readers of hoalawblog.com may recall our prior blog post regarding the new law impacting architectural applications for and installation of solar energy systems. Since then, SwedelsonGottlieb's new Senior Associate Attorney, Brian Moreno, joined the firm, and he penned his own in-depth look at what the new law means for California homeowner associations. Brian's article appeared in a recent issue of The Communicator, published by the Bay Area / Central California Chapter of Community Associations Institute. Follow this link to read/download Brian's informative article.

April 15, 2015

SwedelsonGottlieb Assists HOA’s Successful Effort To Make Individual Buildings Become Smoke-Free

By David C. Swedelson, Esq. and Mark Petrie, Marketing Coordinator at SwedelsonGottlieb, Community Association Attorneys

united_at_laguna_woods_and_smoking_-_Google_Search.pngComplaints about secondhand smoke are increasing, and many associations are looking for options for dealing with the issue. Many boards want to propose an amendment to the association’s governing documents but are concerned about enforcement, as they know that there are some smokers living at their associations.

If your development is made up of several detached buildings, each of which contain multiple units, you may want to consider an innovative alternative – amending the governing documents to allow the owners of each individual building to self-determine that their building will be smoke free! We did this for one of our clients, setting up a process by which the owners of a building can unanimously apply to the board for designation as a permanently smoke-free building.

Check out this story about United Laguna Woods Mutual and the successful approval of such an amendment to their occupancy agreement (United is a stock cooperative). As stated in the article, shareholders in one building obtained designation of their building as smoke-free. Our attorneys at SwedelsonGottlieb worked with United’s Board to prepare the amendment and related documentation that led to this development.

Interested in pursuing a no-smoking amendment to the governing documents of your association? Contact SwedelsonGottlieb today at 800-372-2207 so we may discuss the alternatives that are available to you. Ask for Mark Petrie, who can also be reached via email: mark@sghoalaw.com

April 13, 2015

The Davis-Stirling Common Interest Development Act Is Celebrating Its 30-Year Anniversary: Let’s Celebrate

The following is an excerpt from Community Association Institute's California Legislative Action Committee's article, the full text of which can be found here. SwedelsonGottlieb attorney Brian Moreno, Esq. authored the article.

davis_stirling_act_-_Google_Search.pngMuch has changed over the last 30 years. In 1985, the Dow Jones industrial average was at 1500. The Internet’s domain name system was created, and its first domain name was registered. The cost of a gallon of gas was 93 cents. Ronald Reagan was our President. The world was a different place. In 2015, the Dow Jones Industrial Average is now at about 18,000, there are hundreds of millions of active Internet domain names, and the cost of a gallon of gas is… well, that subject is complicated. More significant to the common interest development (“CID”) industry, the Davis-Stirling Common Interest Development Act, known as the Act, was born 30 years ago.

Remarkably, as signed into law by Governor George Deukmejianin on September 18, 1985, the original Davis-Stirling Act was only 25 pages long. It was a whole lot different than it is today. The original Davis-Stirling Act provided a framework that specifies the various rights and responsibilities of all parties involved with common interest developments. The original Act was amended and revised and added to over 50 times until it was completely redone and reorganized. The Act is now over 100 pages long. For the most part, those additional pages represent the countless hours of collaboration, analysis, research and work that our industry professionals have contributed to improving an already comprehensive and inclusive statutory scheme.

March 19, 2015

CAI Renews Its Call To Action Regarding HAM Radio Broadcasting at Homeowner Associations//Oppose Federal HAM Radio Special Interest Demands to Pre-empt Community Associations’ Guidelines

By David Swedelson, Partner at Swedelson Gottlieb, Community Association Attorneys

Hiding_Colors_for_Roof_Array_.pngFederal legislators are still trying to pass new law that would allow HAM radio antenas to be installed at homeowners associations despite any restrictions on same in an association’s CC&Rs. We addressed this in a blog post in September of 2014; follow this link. Although that bill failed, Representative Adam Kinzinger (R-IL) has reintroduced the same bill, now designated as H.R. 1301.

Community Associations Institute (CAI) has again issued a call to action to its members across the country claiming that “if a HAM radio ‘reasonable accommodation’ standard becomes federal law, community associations face the real prospect of having limited or even no say on the installation of towers and large, fixed antennas used in HAM radio broadcasting.”

The proposed legislation says that within 120 days after enactment, the Federal Communications Commission (FCC) will be required to amend the Code of Federal Regulations, so that law prohibits application to amateur service communications of any private land use restriction, including a restrictive covenant, that–
1. precludes such communications;
2. fails to reasonably accommodate such communications; or
3. does not constitute the minimum practicable restriction on such communications to accomplish the legitimate purpose of the private entity seeking to enforce such restriction.

This is largely the same language used with respect to the inapplicability of covenants or restrictions with respect to Over the Air Reception Devices Act that protects a property owner or tenant’s right to install, maintain or use an antenna to receive video programming from direct broadcast satellites (DBS), broadband radio services (formerly referred to as multichannel multipoint distribution services or MMDS) and television broadcast stations (TVBS). According to the FCC, if there is a question as to whether a community association restriction is valid or enforceable, the burden is on the HOA to prove that the restriction or rule does not violate the federal regulations. Should the same process be applied with respect to HAM radios and equipment?
For more information, follow this link to the CAI website.

David Swedelson is a condo lawyer and HOA attorney. He is not a HAM radio operator. He can be contacted via email: dcs@sghoalaw.com