July 22, 2014

Enforcing Your Governing Documents? Have You Considered What Defenses the Offending Owners May Assert?

Blog post by David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

estoppel%20sign.jpegMany boards of directors make enforcement decisions without considering all of the variables. We get contacted and told that an owner has violated the association’s CC&Rs. When we start asking questions, we find out that there have been similar violations in the past that the board has not dealt with. Or we find out that the violation is old news and the board failed to take timely action. Or that the violation was committed by a prior owner.

As Florida community association attorney Donna DiMaggio Berger states in a recent post to her blog (in an article entitled “Which affirmative defenses might derail your community’s enforcement efforts”), “it is the rare board that undertakes a thorough analysis before sending out those demand letters to determine if the owner can use any affirmative legal defenses to successfully challenge the association's enforcement efforts.”

Continue reading "Enforcing Your Governing Documents? Have You Considered What Defenses the Offending Owners May Assert?" »

July 10, 2014

What's the Deal with Bedbugs? Is Your Condo Association Infested?

By W. Alexander Noland, Esq., Partner, SwedelsonGottlieb, Community Association Attorneys

bed_bugs_pictures_-_Google_Search.pngWhat exactly is a bedbug? Bedbugs are insects. They are reddish brown, oval and flat, about the size of an apple seed. Decades ago, bedbugs were eradicated from most developed nations using dichlorodiphenyltrichloroethane (commonly known as DDT) — a pesticide that has since been banned because it's so toxic. There has been a resurgence of bedbugs in the United States in recent years as a result of increased international travel, changes in pest control practices, and insecticide resistance. And several of our condominium association clients have reported units infested with these little bugs.

Despite their small size, bedbugs are a problem. Bedbugs bite the exposed skin of sleeping humans to feed on their blood, and they often take refuge in clothes or luggage left nearby on the floor after feeding on their human hosts. During the day, bedbugs hide in the cracks and crevices of beds, box springs, headboards and bed frames, and they can also can be found under peeling paint and loose wallpaper, under carpeting near baseboards, in upholstered furniture seams, and under light switch plates or electrical outlets. Experts have stated that bedbugs don't care if their environment is clean or dirty (all they need is a warm host and plenty of hiding places), and that otherwise immaculate homes and hotels can harbor bedbugs. In July of 2010, clothing retailers Hollister and Abercrombie & Fitch had to temporarily close their flagship stores in New York City to eliminate bedbug infestations, likely stemming from bedbugs being on the clothing of visitors to their stores.

Continue reading "What's the Deal with Bedbugs? Is Your Condo Association Infested?" »

June 25, 2014

Be Careful When Your HOA Tows Vehicles; Towing Can Have Deadly Results!

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

owner-towtruck.pngIn California, condo/HOA associations have the right to tow so long as they comply with the law. But sometimes, associations can be too zealous. I was just referred to an article about such a situation in Florida.

Last year, a Florida community association homeowner died after he tried to stop his car from being towed from in front of his home. Here is the short story:

After a dispute with the tow truck driver, this owner was apparently run over by his own car as it was being towed away. This owner, a married father of three, a professor and associate dean at the local university, came home and found that his autistic son's tutor was parked in the second spot in his driveway. So he pulled in behind, with his car protruding onto the sidewalk and swale area.

Continue reading "Be Careful When Your HOA Tows Vehicles; Towing Can Have Deadly Results!" »

June 17, 2014

Please Act Today to Support AB 1360 and Electronic Voting

Assembly Bill 1360, which provides optional (opt-in) electronic voting in HOAs, will be heard in the Senate Judiciary Committee on June 24th. We are asking you to contact the California State Senators referenced below with a message urging them to vote YES on AB 1360. We previously posted an article about this legislation that will allow electronic voting by members of California community associations. Follow this link to read the bill as currently amended.

While this legislation will not make electronic voting mandatory and will require that owners "opt-in" to vote electronically (because some owners may not have access to a computer to vote electronically), it is important that we support this legislation, as it will undoubtedly encourage owners to vote and may result in a smoother, less expensive voting process for California associations. At least this is the hope.

Your support is appreciated. Here is a suggested message:

"Hello, my name is ____ and I am calling to ask the Senator to vote YES on AB 1360 in the Senate Judiciary Committee. [Be sure to note whether you are a constituent.] The bill provides optional and secure "opt-in" electronic voting to homeowner association members. The bill also preserves the secrecy of the ballot and ensures accurate vote tabulation. Further, electronic voting encourages voter participation, and it will save our nonprofit association members money if we don't need to print and mail election materials. Thank you for relaying my message today."

Not sure who represents you in the state legislature? Find them here. If you are a constituent, you may be able to send them an email message by clicking on their name below and contacting them through their website.

Anderson, Joel36916 651 4036916 651 4936
Corbett, Ellen10916 651 4010916 651 4910
Jackson, Hannah-Beth19916 651 4019916 651 4919
Lara, Ricardo33916 651 4033916 651 4933
Leno, Mark11916 651 4011916 651 4911
Monning, William17916 651 4017916 651 4917
Vidak, Andy16916 651 4016916 651 4916

May 20, 2014

Is Your Community Association Filing The Proper Tax Return?

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

1120_tax_return_-_Google_Search.pngI am not an accountant, far from it. But I am aware that there are two different tax returns that condos, HOAs, and cooperatives can (and should) file (and yes, community associations, while exempt to some extent from paying taxes on assessment income, still may have income and need to file tax returns). I have never really understood when an association would file one tax return form versus the other. I was therefore interested in a blog article on this issue by Donna DiMaggio Berger, a Florida community association attorney. Donna’s article addressed a class she took that focused on the issues pertaining to association tax returns. Follow this link to read Donna’s article in its entirety, as I am only going to summarize it here.

As Donna points out, most board members are not all likely to understand the complexities of accounting principles. And most likely do not understand the complexities of tax issues, returns, etc. as the same applies to their homeowners association. This means that board members do need to hire a competent accounting professional to assist their community.

Continue reading "Is Your Community Association Filing The Proper Tax Return?" »

May 16, 2014

Governor Issues an Executive Order Concerning California’s Drought Conditions That Specifically Impacts Homeowners Associations

By David Swedelson, Esq. and Cyrus Koochek, Esq., SwedelsonGottlieb, Community Association Attorneys

drought.pngAt the end of April 2014, California Governor Jerry Brown issued an executive order in an attempt to bolster the state’s ability to conserve, manage, and consume water in light of the major drought conditions currently affecting almost every area of California and its water resources. Although the executive order makes several directives to state agencies and civilians regarding water conservation and the implementation of water reduction programs, one of the directives specifically involves homeowners associations.

To summarize, the directive states that any provision of the governing documents, architectural or landscaping guidelines, or policies of an association will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water saving measures contained in the directive, or any conservation measure adopted by an association’s local public agency or private water company. The directive also states that the reason for the directive is to prevent the reported practice of associations fining or threatening to fine homeowners who comply with water conservation measures adopted by a public agency or private water company.

Continue reading "Governor Issues an Executive Order Concerning California’s Drought Conditions That Specifically Impacts Homeowners Associations" »

April 30, 2014

Texas HOA Demolishes Home For Failure To Maintain; Self Help Is Not Always A Good Idea

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

demolition.pngOften, we are asked by board members at community associations whether the board can use self help to resolve a problem where an owner is failing to maintain their unit or lot/home. Sometimes, we learn about it after the fact. In our experience, self-help is not usually the best or appropriate option. Fortunately, none of our clients have been sued for taking action, and there are no California court of appeal decisions or statutes that address this issue. But we can learn how not to approach this issue by considering what happened to a Texas association that took steps to deal with a problem that landed that association in some very deep you-know-what.

Continue reading "Texas HOA Demolishes Home For Failure To Maintain; Self Help Is Not Always A Good Idea" »

April 21, 2014

Alex Noland Named Partner at SwedelsonGottlieb

screen-capture-56.pngSwedelsonGottlieb, California Community Association Attorneys, proudly announces Alex Noland’s elevation to partner in the firm. Alex has been the senior attorney in the San Francisco office of SwedelsonGottlieb since 2011, and he has been with the firm since 2008. He is a key member of the firm and a leader in California's community association industry.

Alex's law practice with SwedelsonGottlieb is focused on transactional matters, including advising the firm's community association clients on addressing association governance, the negotiation and preparation of contracts, amending and restating governing documents, rule drafting and enforcement, developer transitions, complex cost sharing, easement and parking agreements, and various business and legal issues. He is skilled in the representation of both residential associations and commercial/industrial associations, as well as mixed-use projects. Although Alex is primarily in the firm’s San Francisco office, he is still working with many Southern California community associations and is in the Los Angeles office at least one week each month.

Alex is a current member of the Board of Directors and the Education Committee of the Bay Area and Central California Chapter of the Community Associations Institute (CAI), and he is a former co-chair of the Programs Committee of the Orange County Regional Chapter of CAI. Alex also serves as a member of the faculty and the Legal Advisory Steering Committee of the California Association of Community Managers, and he is an active member of the Educational Community for Homeowners.

Alex can be reached via email: an@sghoalaw.com

April 2, 2014

The Impacts of California’s 2020 Water Law on Community Associations

By: W. Alexander Noland, Esq. & Cyrus Koochek, Esq., SwedelsonGottlieb, Community Association Attorneys

water.jpgIn recent years, California has been faced with drought conditions, reduced water supplies and a consistently growing population. One step the California legislature has taken to address these issues was the adoption of Assembly Bill 1881, the Water Conservation in Landscaping Act of 2006 (the “Act”), which establishes goals for the efficiency and reduction of water usage in California. The Act has been codified in the following California statutory provisions: Section 4735 of the Civil Code; Article 10.8 (commencing with Section 65591) of Chapter 3 of Division 1 of Title 7 of the Government Code; Section 25401.9 of the Public Resources Code; and Article 4.5 (commencing with Section 535) to Chapter 8 of Division 1 of the Water Code, relating to water conservation.

Continue reading "The Impacts of California’s 2020 Water Law on Community Associations" »

March 14, 2014

SwedelsonGottlieb and ALS Awarded 1st Place Exhibitor Booth at CACM

This year's Southern California Law Seminar and Expo hosted by the California Association of Community Managers was a huge success. Representatives from SwedelsonGottlieb and Association Lien Services presented at the event, and we also participated in the exhibitor booth competition. Here's a picture of our team sporting our first place award for our Alice in Wonderland theme! From left to right: Sandra L. Gottlieb, Senior Partner (SG); Alex Noland, Partner (SG); Tracy Neal, Vice President and Supervising Attorney (ALS); Mary Peterson, Client Relations Manager (ALS); David Swedelson, Senior Partner (SG); Cyrus Koochek, Associate Attorney (SG); Sean Allen, Associate Attorney (SG)


February 14, 2014

Happy Valentine's Day - Need a Contract?

heart.pngFriday, February 14, 2014 is Valentine’s Day. A holiday that originated in Italy, it's all about love, and it has chocolate and champagne as staple foods, making it very seductive. And dangerous, because it’s easy to get carried away. That is where your attorney can help. Several Valentine contracts have been floating around the Internet. We would like to share our adaptation of one that another attorney disseminated to his “romantically proficient” clients. It’s a non-binding contractual agreement for affection, hereinafter the “Valentine Agreement.”

My dearest darling [valentine's name here],

WHEREAS, I am madly in love with [valentine's name here], it is herein proposed that [valentine's name here] and I agree to be bound to the present Valentine Agreement subject to the following terms and conditions hereto:

1. BILATERAL. [Valentine's name here] and I agree to bestow upon each other the title of “My Valentine.”
2. EXCLUSIVITY. For the duration of this agreement, [valentine's name here] and I will not enter into a Valentine Agreement with other parties.
3. DEMONSTRABILITY. Both parties agree to perform at least one (1) but not more than three (3) displays of public affection including, but not limited to, a kiss.
4. FINANCIAL OBLIGATIONS. Financial obligations covered under this Agreement extend to dinner, drinks, and a dessert containing chocolate and something red. Yes, [valentine's name here], you get to choose the restaurant.
5. ENTIRE AGREEMENT. The above covenants represent the entirety of the Valentine Agreement. Parties are not bound to any oral or written representations outside of this Agreement, including but not limited to (a) “Going steady”; (b) Holding hands; or (c) Meeting the parents of either party.
6. DURATION AND SEVERABILITY. This Agreement is effective as of 12:00 p.m. on February 14, 2014, and becomes null and void at 12:00 a.m. on February 15, 2014 (the Cinderella clause). We understand that both parties might be tempted to enter into an impromptu extension. This must be in writing. As movie producer Samuel Goldwyn said, “A verbal agreement isn’t worth the paper it’s printed on.”

February 13, 2014

Thomas the Tank Engine has a Useful Song for Homeowners About Rules & Regulations

Most homeowners at condo or HOAs follow their association’s rules. A few “bend the rules a bit.” And although they know that they “should be doing as“ the rules require, they don’t.

They seem to believe that doing things the “wrong way may seem easier,”
“It doesn't matter who you are, obey the rules and you'll go far.”

We have to assume that those who violate the rules did not listen and take to heart what Thomas the Tank Engine meant when he sang his Rules & Regulations song. For those of you who have forgotten it, here is a video of the song and below are the lyrics (and maybe you will want to share this with some rule violators out there).

Looking for a better way
And you think you've got it all under control
And so you bend the rules a bit
As you try to make things fit
But you know you should be doing as you're told

Although sometimes you'll find it so hard
And the wrong way may seem easier
It doesn't matter who you are
Obey the rules and you'll go far

We all live by rules and regulations
Rules and regulations now
Isn't it a bore, isn't it a chore
Sometimes it's so hard remembering all those
Strict rules...codes...laws...all those stipulations
Rules and regulations now
But without those rules and regulations
Where would we be now?

So you see you have to try and do the right thing every time
If you do, then you will come to the conclusion
That there is right and there is wrong
And the rules help you along
And they're really only there for your protection

Although sometimes you'll find it so hard
And the wrong way may seem easier
It doesn't matter who you are
Obey the rules and you'll go far

We all live by rules and regulations
Rules and regulations now
Isn't it a bore, isn't it a chore
Sometimes it's so hard remembering all those
Strict rules...codes...laws...all those stipulations
Rules and regulations now
But without those rules and regulations
Where would we be now?