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?

Continue reading "Your California Condo or Coop Community Association Could Likely Benefit From An Umbrella Policy" »

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:

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:

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:

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


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.

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

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:

April 18, 2016

Is Your Los Angeles Condo Association on the List Requiring Retrofitting of Wood-Frame Buildings to Better Withstand a Major Earthquake?

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

The list is out, and an article in the LA Times reports that neighborhoods in the San Fernando Valley, Hollywood and the Westside will feel the biggest impact from Los Angeles' new law requiring the retrofitting of wood-frame apartment buildings to better withstand a major earthquake, according to a Times data analysis.

The article tells us that LA City inspectors spent about two years developing a list of 13,500 so-called soft-story buildings that will probably need seismic strengthening. And that list includes soft condominium associations, likely apartment buildings that were converted to condos. So, your condominium association may be on the list.

Continue reading "Is Your Los Angeles Condo Association on the List Requiring Retrofitting of Wood-Frame Buildings to Better Withstand a Major Earthquake?" »

April 13, 2016

Oppose California Assembly Bill 1720 Which Would Allow HOA/Condo Members the Right to Bring Their Attorney to an Association Board Meeting

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

california_legislation_-_Google_Search-1.pngI recently posted to HOALAWBLOG an article entitled California HOA/Condo Owners Do Not Have The Right To Have Their Attorney Attend The Association’s Board Meetings -- SB Liberty, LLC, v. Isla Verde Association, Inc. In that article, I addressed the question of whether homeowners have a right to have their attorney present at board meetings and addressed the Court of Appeal’s decision in the case of SB Liberty, LLC, v. Isla Verde Association, Inc. Based on this decision, we can definitively say that members do not have the right to bring their attorney to an association board meeting.

The Court ruled in SB Liberty that Section 1363.05 of the California Civil Code (now found in Civil Code Section 4925) specifically states that members may attend an association’s board meetings. This means that members cannot have their attorney, or any other nonmember, attend in their place.

We also recently posted an article entitled Oppose AB1720-HOA Members Should Not Be Able To Have Their Attorney Attend Community Association Board Meetings.

Here/below is my letter that I am sending to the legislature to let them know that I am opposed to AB1720 and with good reasons (and if you like my letter, follow this link for a similar one that I formatted for board members and managers to send):

Continue reading "Oppose California Assembly Bill 1720 Which Would Allow HOA/Condo Members the Right to Bring Their Attorney to an Association Board Meeting" »

April 11, 2016

Catch the Second Episode of The HOA Show with Sandra Gottlieb!


SwedelsonGottlieb's Senior Partner Sandra Gottlieb is honored to make another appearance on the second "episode" of The HOA Show, an educational luncheon presented by the Channel Islands Chapter of Community Associations Institute. Join us on April 26th for this fun format, where you can find out more about the following topics:

• Current events, trends and ideas occurring in the HOA industry and your communities
• Is HOA living all negative? Navigating your way through Homeowner complaints, issues and demands.
• New industry developments & technology news: drones, electronic voting and dealing with issues of potential defamation on social media
• Privacy Issues: Can members record a board meeting and use it as evidence against the board? Can boards enforce a “no recording” policy?
• How to apply new case law decisions to your associations: reasonable rules and regulations for rentals; selective enforcement and looking at pending legislation; attorneys attending open board meetings and ballot procedures for uncontested elections
• Separating the roles, requirements and expectations of Managers and Boards: What Managers and Boards (should) each do
• How committees can benefit a Community while protecting the Association from liability

Follow this link to register for the event! Thanks, we'll see you there.

April 11, 2016

California HOAs Are Not Liable For Damages Caused by a Minor, Trivial, or Insignificant Defect in the Common Area

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

trivial_walkway_defects_-_Google_Search.pngI recently assisted a large condominium association in dealing with a claim by an owner that she had fallen and injured herself after tripping on a common area walkway. Management looked at the area where this woman claimed to have fallen, and all they could find was a slightly raised area of concrete - a trivial defect. It reminded me of a 2011 Court of Appeal decision in the case of Cadam v. Somerset Gardens Townhouse HOA involving a 63-year-old woman who was injured when she fell after tripping on a separation in a concrete walkway next to the townhome she was leasing.

In that case, Cadam filed an action against the homeowner’s association and its management company claiming causes of action for premises liability and negligence. She alleged that the walkway had shifted and adjacent sections had separated such that they differed in height by three-fourths to seven-eighths of an inch, creating a dangerous condition.

Following a jury verdict in favor of the injured resident, the trial court granted the association’s motion for judgment notwithstanding the verdict (meaning that despite what the jury found, the judge felt that the evidence was not sufficient to justify the jury’s decision and set it aside). And the judge did this despite the fact that the association’s president had testified that a defect of one-half inch or more is “probably” dangerous. The court found that no reasonable person could find that the condition was not a trivial defect under the circumstances.

Continue reading "California HOAs Are Not Liable For Damages Caused by a Minor, Trivial, or Insignificant Defect in the Common Area" »

April 4, 2016

CAI Government Affairs Announces That Freddie Mac, Fannie Mae Release Uniform Condominium Questionnaire For Condominium Unit Loans

The following is reposted from Community Association Institute’s (CAI) Government Affairs Division:

On March 29, federal housing agencies Freddie Mac and Fannie Mae released a standardized set of lender questionnaires for condominium unit mortgages. The Uniform Condominium Questionnaire is intended to reduce the burden on community associations that routinely provide condominium project information to mortgage lenders.

To comply with Freddie Mac and Fannie Mae mortgage purchase guidelines, mortgage lenders must verify financial and property standards for condominium projects. Over the past two years, Freddie Mac and Fannie Mae worked with CAI and the mortgage lender community to develop a uniform condominium questionnaire to ease the process of obtaining this information. Lenders will now have two options when requesting information from a condominium association.

“Condominium associations have been plagued by a multitude of questionnaires and forms used by lenders to underwrite mortgages. With the standard Freddie Mac and Fannie Mae condominium questionnaire, association boards and community management companies will no longer need to spend valuable time and resources completing multiple and conflicting questionnaires,” said Dawn M. Bauman, CAE, CAI’s Senior Vice President for Government and Public Affairs.

The first option, Form 1076, provides a broad overview of a condominium association’s financial, legal, and property status. Once a condominium association has completed a Form 1076 for a lender, it is anticipated the lender will not resubmit Form 1076 for subsequent inquiries.

A second, shorter form, Form 1077, is intended for use by lenders where a condominium association has previously completed a Form 1076. Freddie Mac and Fannie Mae have requested that lenders update Form 1076 only on a periodic basis.

“Community associations and community management companies want the simplified condominium questionnaire to be successful. We are ready to do our part,” said Bauman. “At this time, the form is not mandatory for lenders to use. Ultimately, lenders must commit to using the standardized forms and we hope they choose to use one standardized form.”