November 11, 2016

Harbor Gate HOA Receives CAI-GLAC Excellence in Community Leadership

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Community Associations Institute's Greater Los Angeles Chapter held its Annual Awards Gala on Saturday, November 5, 2016. SwedelsonGottlieb congratulates firm client Harbor Gate Homeowners Association (San Pedro, California) for receiving the Chapter's award for Excellence in Community Leadership.
Harbor_Gate_HOA_Receives_Prestigious_Award___Entries___HOA_Law_Blog___Movable_Type_Publishing_Platform.pngBoard members Betsy Koehler, Lois Riopelle and Carolyn Cooper were present to accept this prestigious award from Chapter President-Elect Joanne Pena, which was given to this Association because of the hard work and effort the Board undertook to pass a large special assessment for needed common area repairs and renovation work.

This Board undertook the task of pulling the membership together after several failed attempts to obtain member approval and financing for a $4 million dollar renovation project due to years of deferred maintenance. By not giving up on getting the members to see the benefits of investing in their Association and in turn their units, this Board went above and beyond for the betterment of their Association and its homeowners. The Board was successful in the passage of the special assessment and obtaining the homeowners approval to authorize the Association taking out a loan to help the owners pay the special assessment for the work. To date, the Association has completed the repairs to their roof, chimneys, siding and trim, replaced elevated walkways, waterproofing planters and decks, termite treatment, and installation of drought-tolerant plant material. SwedelsonGottlieb Senior Partner Sandra Gottlieb and associate Kevin McNiff worked with the Board to achieve it's goals. Harbor Gate Homeowners Association is managed by Scott Management,Torrance, California whose efforts were also essential to the Board's success. www.ScottMgmt.com

November 8, 2016

Do California HOA/Condo Homeowners Have The Right To Post Political Signs On Their Property Or In Their Windows?

By David Swedelson, Esq. Senior Partner, SwedelsonGottlieb, Community Association Attorneys

Posting_Political_Signs_in_the_Window_Is_Your_Right_%E2%80%94_Isn%E2%80%99t_It__-_The_New_York_Times.png Considering how contentious the campaigns for president have been for the election of our next president, it is amazing that we have not received more requests from our California community association/HOA clients for advice on how to deal with political signs. The fact is that we have generally seen less political signs posted on properties then I remember in past elections. With respect to the presidential election, that may have something to do with people not really wanting to out themselves as a supporter of one candidate versus another.

Don’t get me wrong as we have received a few requests for advice from some of our association clients, just not as many as I remember from past presidential elections. In all but one of the matters that we have been requested to consult on did we find that the homeowner did not have the right to post their sign. At one association, the board did not want the owner to have their sign posted prominently in the front window of the owner's condominium. One of the board members forwarded to me the attached article that appeared in the New York Times indicating that in New York, homeowners do not have the right to place political signs in their windows or on their property unless permitted by their association. The article (follow this link) questioned whether a resident at a community association in New York has a constitutional right to post a political sign on their property. Apparently in New York, a community association can have rules prohibiting political signs or other types of signs placed in the windows or elsewhere, depending on the associations rules.

Continue reading "Do California HOA/Condo Homeowners Have The Right To Post Political Signs On Their Property Or In Their Windows?" »

October 23, 2016

Clotheslines and California HOAs: Not In The Front Yard Please Update to Civil Code § 4750 (Clotheslines & Energy Conservation)

outlandish_drying_clotheslines_-_Google_Search.png From the Community Association Attorneys at SwedelsonGottlieb

California law now limits a community association’s ability to restrict the use of clotheslines and drying racks. Effective January 1, 2017, Civil Code 4750.10 invalidates any provision of a governing document that effectively prohibits or unreasonably restricts an owner’s ability to use a clothesline or drying rack in their backyard. This law reflects California’s tendency toward energy conscious legislation, and in fact, the law originally referred to clotheslines as “solar energy systems.”

As applied to community associations, the new law has some important limitations. For example, it only protects an owner’s ability to use a clothesline in a backyard designated for exclusive use. So, the law does not sanction an owner’s ability to use clotheslines in other areas, such as their front yard or a shared rear yard. Further, the law explicitly states a balcony, railing, awning, or other part of a structure or building does not qualify as a clothesline. So, the new law does not protect owners who string wet clothes over their balcony railing to dry.

Even where a backyard clothesline is concerned, an association may establish reasonable restrictions on the use of clotheslines and drying racks. A restriction is reasonable if does not significantly increase the cost of using a clothesline or drying rack. As the cost of a clothesline or drying rack is generally low, and the law does not provide any guidance on what constitutes a “significant increase” in cost, this may become an issue. As it stands, associations should take note that any prohibition or unreasonable restriction concerning the use of a clothesline or drying rack in an owner’s backyard (exclusive use or their property) is no longer enforceable.

Questions? Contact SwedelsonGottlieb 800-372-2207

October 23, 2016

New Law Requires That California Community Associations/HOAs Request That Members Provide Their Contact Information -- New Civil Code § 4041

new_leglisation_notice_to_owners_to_provide_contact_information_-_Google_Search.pngBy the Community Association Attorneys at SwedelsonGottlieb.

Starting January 1, 2017, every California community association will be required to ask its members to provide their contact information and property status. New Civil Code § 4041 will require, starting January 1, 2017, that each association must solicit the following information from its members:

1. The mailing address where notices from the association are to be delivered;
2. Any secondary address where notices from the association are to be delivered;
3. The name and address of each member’s legal representative, if any, or other person who can be contacted in case of the member’s extended absence; and
4. Whether the member’s property is owner-occupied, rented, vacant, or undeveloped land.

Although the statute does not mention how often an association must solicit this information, it does state that each member is responsible for providing this information to the association on an annual basis. If a member does not provide this information, the member’s onsite mailing address is deemed to be the proper mailing address for the association to deliver notices to the member. We recommend asking owners annually to provide this information.

Its important for associations to note that as long as they request all of the contact information above, Section 4041 places the responsibility on members to provide their correct and current contact information. Requiring members to provide this information should aid associations in giving notice of meetings or for other required notices as well as with the collection of delinquent assessments as it should help negate the argument that a notice was sent to the wrong address.

Questions? Contact SwedelsonGottlieb 800-372-2207

October 23, 2016

Update To Fair Housing Act Requires Community Associations to Act on Discriminatory Conduct and Harrassment

fair_housing_harassment_-_Google_Search.pngFrom the Community Association Attorneys at SwedelsonGottlieb

An update to the Fair Housing Act, effective October 14, 2016, clarifies an association’s responsibility to address discriminatory conduct and harassment by its residents. The Fair Housing Act prohibits discrimination in housing and housing-related services due to race, color, religion, sex, national origin, disability, and familial status (42 U.S.C. 3601 et seq.). Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act

This update to the Fair Housing Act clarifies that an association is directly liable for failing to take prompt action to end any third party’s discriminatory housing practice if the association knew or should have know about it and had the power to correct it. A commentator for the U.S. Department of Housing and Urban Development stated, “a community association generally has the power to respond to third-party harassment by imposing conditions authorized by the association's CC&Rs or by other legal authority […].”* Accordingly, an association must take some action to address any alleged discrimination by residents or other people within its authority.

If a manager or board member receives a complaint concerning neighbor-to-neighbor discrimination, some action must be taken. However, what action is appropriate is a fact specific question. Most neighbor-to-neighbor disputes do not really involve “discrimination,” at least not the kind of discrimination that we usually associate with Fair Housing complaints. But determining what is or is not “discrimination” is not always that easy. In light of the association’s potential liability and the sensitivity of the situation, if an association receives an allegation of discriminatory conduct, it should contact legal counsel for guidance.

*Quoted from Office of the Federal Registrar

Questions? Contact SwedelsonGottlieb 800-372-2207

August 21, 2016

Your California Condo or Coop Community Association Could Likely Benefit From An Umbrella Policy

By David Swedelson, Senior Partner at Swedelson & Gottlieb, California Community Association Attorneys

Protect_your_condo__co-op_or_apartment_building_with_commercial_umbrella_insurance_-_Mackoul___Associates__Inc_.png We are often asked how much insurance a condo or coop association should carry. I often respond by saying as much as the association can afford. Here is a great example of a situation involving one of our firms clients (the facts have been altered to maintain confidentiality). A woman was trying to get into a condo association and the parking arm was stuck. She and her entourage were physically trying to get the arm to move when it dropped hitting her in the leg. It hit an artery and she almost died. She suffered some permanent disabilities and then she sued the association.

Turns out the association knew about the problem and its maintenance guy had been fiddling with the equipment to get it to work. Long story short, there was little question that the association was negligent and the association’s insurance carrier paid out almost 3 million to settle the claim just before trial was supposed to start. The association had a $2 million general liability policy. Fortunately, the association also had a $1 million umbrella policy and with that additional money was able to settle a claim that had the potential for damages that could have exceed the association’s insurance coverage. This is just one of many other examples.

So, what is an umbrella policy?

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August 17, 2016

Has The Pokemon GO Craze Impacted Your California HOA?

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

Google_Image_Result_for_http___blogs-images_forbes_com_olliebarder_files_2015_09_pokemon_go_title_jpg.pngHave you noticed some unusual behavior from some association residents lately? You may have seen them walking outside swiping their smartphones. They may have a newfound interest in going to parks. And when they talk, they use unfamiliar words like Pikachu, Snorlax, and Pokéstops. If this sounds familiar, then your residents are into Pokémon GO.

I have heard about this new phenomena, but knew little about it. I saw an article entitled Back In The Race: The Employer’s Guide To Understanding (And Dealing With) Pokemon GO that was directed to law firms and decided to use it as the basis for this blog post as to how Pokemon GO would impact California community associations. ( Follow this link to read the article)

According to the article, “Pokémon GO is a treasure hunt where people travel to various places in real life and use their smartphones to capture randomly placed critters known as Pokémon (short for Pocket Monsters). These critters are then used to battle other players’ Pokémon and take over Gyms placed in select real-life locations. Finally, in order to catch and take care of the Pokémon, they have to obtain items from Pokéstops that are also placed in various real-life locations.”

“Pokémon GO has been credited with helping normally sedentary people get out of the house and exercise. It has also helped shy people improve their social skills, as complete strangers collaborated to find and capture the rarer Pokémon in the area.”

But it has the potential to be a distraction and some people have reportedly gotten hurt walking into the street or off platforms, etc. “Pokémon GO is different from other online games like Candy Crush because employees may have to leave the office to play.” This is not a problem if your association “is located in a rural area or near residences with little to no Gyms and Pokéstops. In these areas, Pokémon only appear a few times during the day, and the ones that do appear are the common rats, snakes and pigeons that nobody wants after a day or two.” But if your association happens to be located near or is a popular Pokéstop “that spawns rare Pokémon, you may find that your residents are walking the common area on their smartphones responding to Pokémon spawns rather than paying attention to where they are going or walking.”

“While most people will play Pokémon GO responsibly and during appropriate times, some people will be addicted and will focus more on catching them all and will not pay attention to their surroundings.” So, if there are reports of people hurting themselves by walking into or off of things at the association, it may be because they were playing Pokemon GO.

So, now you know, if you did not already know, what this Pokemon GO phenomena is all about. And now I have to go as I still need to find some Pokéstops.

David Swedelson is a condo lawyer and HOA attorney and a respected expert in community association law. He can be reached via email: dcs@sghoalaw.com

August 15, 2016

Zika Virus and Your Community Association

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

communityassociationlawblog_com-Zika_Virus_and_Your_Community_Association__1_page_.png Although the Zika Virus has not yet been found in California, that does not mean that it will not find it’s way here. Florida community association attorney and blogger Donna DiMaggio Berger addresses a community association’s obligation to protect owners and residents from the foreseeable risk of harm from something inside the community and adds the Zika Virus to the list. Maybe we in California should take note. (follow this link to read Donna's blog)

As Donna states regarding an association’s obligation to protect residents from harm, “[w]hether or not that duty is spelled out in the governing documents, there is the expectation that the association will ensure that residents do not get sucked into a non-compliant pool drain and drowned, trapped inside an unsafe elevator or mugged in the parking lot.”

Donna then asks: “With the growing threat of Zika virus in the U.S. and particularly in South Florida what, if anything, should your community be doing to lessen this threat to your residents?”

Donna’s recommendations are applicable to California community associations. As she states “a physical inspection of your community is warranted. The Centers for Disease Control and Prevention (CDC) has issued important recommendations on how to address any property conditions which might be attracting mosquitoes and providing convenient breeding grounds for them. Standing water in your community should be drained if possible or treated with insecticides. Non-functioning fountains should be drained and turned off and birdbaths drained.”

One thing that Donna did not address is the Association’s disclosure obligation. First, if there is a case of the Zika Virus that involves a member of the community, or if it has been found in the area, disclose this to the owners. There is no way the association can find all areas of standing water (for example). Advise the owners/residents to take appropriate precautions. It would be a mistake to deny or hide the existence of the Zika Virus in the community.

Also, an association may face liability or at least lawsuits if it does not take precautions and/or disclose the problem. Minimize the association’s disclosure by taking what precautions the association can and disclose the issue and recommend that owners and their tenants take precautions that involve the owner’s property or exclusive use common area.

And, as Donna states, “there is no reason for your community to panic nor is there a reason for your board to undertake responsibilities that are not yours to bear. However, taking reasonable steps to prevent a potentially devastating problem for some of your residents should be explored,” especially if an association wants to limit it’s exposure to lawsuits.

David Swedelson is a condo lawyer and HOA attorney and a respected expert in community association law. He can be reached via email: dcs@sghoalaw.com

August 3, 2016

New Mold Law -- SB 655/ California Health and Safety Code Sections 17920 and 17920.3 Effects California Community Associations

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

Signs_of_Mold_in_House.pngEffective January 1, 2016, California Senate Bill 655 amended provisions of the California Health and Safety Code, specifically Sections 17920 and 17920.3. Although the Health and Safety Code impacts almost all persons and entities in California to some extent, SB 655 and the changes it makes to the Code will likely have a more direct impact on California community associations than was even intended by the legislature.

The new legislation adds to the Health and Safety Code a definition for mold as microscopic organisms or fungi that can grow in damp conditions in the interior of a building. It is worth noting that because there is no scientific definition of mold, the new law’s definition is not scientific in nature and may prove vague going forward. More importantly, the changes to the law will add the presence of visible mold to the Health and Safety Code’s recognized list of conditions upon which a residential multi-unit building can be considered as substandard.

Although visible mold growth is being added to the foregoing list of substandard conditions, it is important to remember that the statute will specifically exclude the presence of mold that is “minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use.” Additionally, the list of conditions in the statute only rise to a “substandard” level to the extent the condition, in this case mold, endangers the life, limb, health, property, safety or welfare of the public or occupants of the building. We expect that there will be some debates on this.

Continue reading "New Mold Law -- SB 655/ California Health and Safety Code Sections 17920 and 17920.3 Effects California Community Associations" »

August 2, 2016

President Obama Signs Legislation Modernizing FHA Condominium Approvals

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

Housing_Opportunity_through_Modernization_Act_-_Google_Search.pngCommunity Associations Institute (CAI) announced today that on Friday, July 29 President Barack Obama signed H.R. 3700, the Housing Opportunity through Modernization Act. H.R. 3700 is now federal law.

CAI reports that H.R. 3700 reforms the process used by the Federal Housing Administration (FHA) to determine if condominium unit owners qualify for a mortgage with FHA insurance. FHA does not originate mortgage loans, but instead insures mortgages against default.

“FHA-insured mortgages are widely used by first-time and minority homebuyers to purchase a home. In 2009, FHA changed its condominium qualification rules, leaving the majority of condominium homebuyers ineligible for FHA-insured mortgages. H.R. 3700, which CAI strongly supported, is expected to expand the number of condominiums where borrowers can use an FHA-insured mortgage to purchase a home.”

(follow this link)

David Swedelson is a condo lawyer and HOA attorney and a respected expert in community association law. He can be reached via email: dcs@sghoalaw.com

July 11, 2016

Condo Associations Can Regulate Nuisance Hard Surface Flooring (Even If the Owner Has Allergies); Ryland Mews v. Munoz

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

hard_flooring_nuisance_noise_-_Google_Search.png

Many homeowners want hard surface flooring instead of carpet. And they will often present a prescription from their doctor for a hard wood floor in an effort to get around their association’s restrictions or prohibitions on hard surface flooring. Yes, a prescription for a hard wood floor on a doctor’s prescription form. But anyone that works with condos knows that hard surface flooring may create nuisance problems for the downstairs neighbor. And when the downstairs neighbor complains to the board about the hard surface floor that was not approved and violates the CC&Rs, the board is sometimes reluctant to take legal action thinking that a court is not going to rule in its favor. The California Court of Appeal debunked that thinking in the case of Ryland Mews v. Munoz upholding a California condominium association’s ability to limit hard surface flooring in response to nuisance complaints.

The story in the Ryland Mews case is all too familiar. Munoz moved into their upstairs unit at Ryland Mews and replaced the carpets with hardwood floors allegedly to accommodate the wife’s severe dust allergy. And it was not to soon after that when the downstairs neighbors complained about the additional noise they were now hearing.

When the association’s manager wrote to Munoz regarding the complaints and the fact that the alteration of the flooring was made without prior approval of the association, Munoz did not respond within the 30 days Management had given them. Management wrote to Munoz again, this time requesting Alternative Dispute Resolution (ADR) under the Davis-Stirling Act. Munoz still did not respond to the Association’s Request for Resolution.

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June 29, 2016

Civil Code §5300: Amended/New FHA/VA Disclosures Required After July 1, 2016

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

7_New_PA_Laws_That_May_Change_Your_Life_In_2016___Patch.pngAs we previously reported, (follow this link) Section 5300 of the Civil Code was amended in 2015 and becomes effective as of July 1st of 2016. The changes to section 5300 of the Civil Code requires California community associations to include statements in their annual budget reports disclosing whether the Association is certified by the Federal Housing Administration (FHA) and Veterans Affairs (VA).

If an Association's fiscal year runs on or after July 1, 2016, it will be required to include the FHA and VA required information in the Annual Budget Report.

Some important things to remember: the statements need to be in at least 10 point font, on separate pieces of paper, and must contain the specified/required language. Yes, we know that it seems like a waste of paper, but the code is very clear that the statements must be on separate sheets of paper.

The changes to Civil Code section 5300 regarding the FHA and VA disclosures appears by its language to apply only to condominium associations, although this is not altogether clear. The required language for each disclosure asks whether the common interest development is or is not a condominium project. Why ask that if only condo associations are required to comply? And why would only condominium associations be required to comply? There is legislation pending that will help resolve this confusion by not requiring a disclosure as to whether the common interest development is (or is not) a condominium project. Because of this confusion, many are suggesting that all community associations including planned developments provide the FHA and VA disclosures.

Want more information regarding FHA certification? Follow this link to an article in Coachella Valley's newsletter providing excerpts from CAI National’s Guide To FHA Certification.

David Swedelson is a condo lawyer and HOA attorney and a respected expert in community association law. He can be reached via email: dcs@sghoalaw.com