September 17, 2014

Say No to the Amateur Radio Parity Act at Condominium and Homeowner Associations; Support CAI’s Call To Action

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

ammature_radio_tower_on_condo_-_Google_Search.pngGrowing up, there was a home in our neighborhood that had a massive radio antenna, much like the one in the photograph that is part of this blog post. As a kid, I was fascinated by the antenna. It was so big. Actually, I was captivated by the thought that I could talk to people around the world via a ham radio.

As an adult, while I may still be enamored by the prospect of communicating with people around the world, these days I do that via email, twitter and the telephone. While I have no problem with others wanting to be ham radio operators, I would not want to see one of these radio antennas on the roof of a home at my community association. And I know that many of you feel the same way about not allowing radio antennas, like the one in the photograph, at the associations you live in, manage or work with.

We previously posted a blog article regarding H.R. 4969, the Amateur Radio Parity Act introduced by U.S. Rep. Adam Kinzinger (R-IL), legislation that would make unenforceable community association prohibitions and CC&R restrictions on the installation and use of amateur radio towers and antennas.

If H.R. 4969 becomes law, homeowners who want to install a radio tower or antenna for amateur radio use would NOT have to go through the architectural review process or follow existing community guidelines. They could just install these large antennas.

The national Community Associations Institute (CAI) has been following this proposed legislation in Congress. CAI has initiated a campaign to preserve the rights of America's community associations with regard to amateur radio towers and antennas. Most recently, CAI has issued a Call To Action, as apparently this proposed legislation is gaining support in Congress. We need to let our legislators know that we do not want them supporting the Amateur Radio Parity Act.

David Swedelson is a condo lawyer and HOA attorney. He does not have a ham radio antenna on his home. He can contacted via email: dcs@sghoalaw.com

September 17, 2014

LA City Council Adopts System of Fines For Minor “Quality of Life” Crimes; Too Bad Your Condo/HOA Cannot Follow The Same Procedure

poliCE_officer_issuing_citation_-_Google_Search.pngBy David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

The LA Times reports that the Los Angeles City Council has adopted a new system that allows police officers to issue citations for minor “quality of life” crimes that would typically be resolved with a warning. Read the article here.

According to the article, “a pilot program, called Administrative Citation Enforcement, gives the Los Angeles Police Department and the Department of Animal Services a new enforcement tool that bypasses the court system. It allows city officials to impose fines for offenses such as urinating in public, having dogs off leashes or dumping garbage in public streets.”

Currently, law enforcement officers can issue a warning or write a citation for a misdemeanor “criminal” case against individuals who commit these “minor” crimes. The City Council apparently recognizes that law enforcement is reluctant to file criminal charges and the City is accused of not enforcing the law.

“The city just needs a little clout,” City Counselman Paul Koretz is quoted as saying. “This is one of the most frequent complaints we get: that the city doesn’t enforce its regulation — and it’s true.”

The Times reports that under the program, most first offenses would be $250, the second $500 and the third $1,000. Fines for animal-related offenses begin at $100, which then increases to $250 and then $500 for subsequent violations. In each incident, officers can still decide whether to issue a warning, a financial penalty or a criminal case. If the City can levy these kinds of fines, so can California community associations.

One issue I see with this new proposed system is the lack of due process, as it appears that law enforcement can issue a fine without a hearing. I am assuming that a person who is issued a citation has the right to ask for a hearing. And I also assume that a citation with a fine can only be issued if the law enforcement officer actually witnesses the violation, such as the dog not being on a leash. We will have to see.

Under the Davis-Stirling Act, California condos and homeowner associations CANNOT follow the same system, unfortunately. In the old days, this was the system at many associations. But then owners complained to their legislators that their associations were issuing tickets with fines without first giving them a hearing. The legislature adopted a change to the Civil Code to address these owners' concerns, making it more difficult for many community associations to enforce their rules and CC&Rs, as many boards do not want to have to go through the hearing process.

The Davis-Stirling Act has for many years required a hearing before the board can levy a fine. Follow this link to see Civil Code Section 5855 that states that the board cannot impose “discipline” (fine, monetary charge, suspension of privileges, towing, etc.) upon an association member, without first giving the member notice and holding a hearing.

The Times also reports that this new system is a revenue generator for the City, as it is expected to generate $1.59 million in net revenue annually. It still requires final approval from Mayor Eric Garcetti before it can go into effect.

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

September 3, 2014

Oppose AB 1738 So We HOA Lawyers Don't Make More Money; IDR Should Be An Informal Dispute Resolution Process

Benefits_of_Alternative_Dispute_Resolution___Lawyers_com.pngWho said you can't trust lawyers? You can certainly trust SwedelsonGottlieb, as we are actively opposing proposed new legislation that would make us more money, AB 1738. This bill concerning internal dispute resolution (IDR) in common interest developments (Civil Code Sections 5900-5920) was recently passed by the the California State Assembly and the Senate unopposed. It's clear that the legislators do not understand the implications of what may happen if this legislation is signed into law by the Governor. If signed into law, this new law will most certainly make more work for us community association attorneys, as owners will be bringing their attorneys to IDR meetings, and many boards will opt to do the same.

Review the proposed revised language to Civil Code Sections 5910 and 5915 by following this link. On its face, the revised language is pretty innocuous. However, those with real-world experience with IDR in community associations (such as board members, managers and the attorneys that guide them) realize that AB 1738 will end up costing community associations more money for legal fees if this bill becomes law. Why? Because, as CAI’s California Legislative Action Committee (CAI-CLAC) suggested in its Call To Action on this Bill, “AB 1738 encourages members to bring attorneys and others to their first meeting with a single board member who has volunteered to help work out the member's problem or concern. These simple 'meet-and-confer' conversations over coffee most often resolve an issue. When they occasionally don't, either party may pursue a more formal Alternative Dispute Resolution (ADR) process that does involve lawyers. Nothing in law prevents lawyers from attending IDR right now, but AB 1738 actually promotes having them present to argue the issue(s). This will invariably make the discussion adversarial.”

Continue reading "Oppose AB 1738 So We HOA Lawyers Don't Make More Money; IDR Should Be An Informal Dispute Resolution Process" »

August 26, 2014

40 Foot Hedge View Obstruction Dispute Between Condo Owner and Neighboring Property Owner Going to Trial

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

Phil_Angelides___Curbed_LA.pngWe deal with a lot of view obstruction disputes. We are able to resolve most of these disputes, as they are subject to CC&Rs which set out what view is protected. And the CC&Rs and the Civil Code provide that the prevailing party is entitled to collect their attorneys’ fees. That usually convinces most people that the fight is not worth the cost.

Sometimes, these view disputes cannot be resolved. For example, in July of 2013, I blogged about a case I had tried and won that dealt with a homeowner who was not part of the association she sued, claiming her cherished view of the association’s lake was obstructed by the trees in the association’s park; she claimed it was a spite fence. Follow this link to read that story.

So, I found an article about a lawsuit involving a 40 foot hedge to be interesting. The legal battle over the hedge is between two Santa Monica properties. Follow this link to read the Daily Journal article.

The article tells us that while they tried to settle the dispute, the “Santa Monica neighbors - well-known local plaintiffs' attorney Browne Greene and former California state treasurer Phillip N. Angelides - are instead opting to go to court in September over the 40-foot hedge between their two homes.”

Continue reading "40 Foot Hedge View Obstruction Dispute Between Condo Owner and Neighboring Property Owner Going to Trial" »

August 22, 2014

Homeowner Apathy, Quorum and Prizes to Get Owners to Vote

By: David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys. Alex Noland, also a Partner at SwedelsonGottlieb, assisted in the preparation of this article.

voter_apathy_-_Google_Search.pngIt is an old problem. Many California community associations cannot motivate their owners to participate or even vote at association elections. We have had clients that have been unable to obtain a quorum for director elections for more than 20 years. Even my own association recently reported a failure to achieve a quorum and decided not even to bother holding a second meeting, knowing that the chances of obtaining a quorum was remote.

Some condominium and homeowner associations have the ability under their governing documents to reduce the required percentage for a quorum at adjourned meetings, often from 50% to 25%, but even then some of those associations cannot get 25% of the owners to vote.

Many board members and managers have told me that they believe this is a problem with community associations in general. The fact is that this is not just a problem for community associations; it is a problem for federal, state and local elections as well. A recent Los Angeles Times article stated that “alarmed that fewer than one fourth of voters are showing up for municipal elections, the Los Angeles Ethics Commission voted... to recommend that the City Council look at using cash prizes to lure more people to the polls.”

Continue reading "Homeowner Apathy, Quorum and Prizes to Get Owners to Vote" »

August 20, 2014

Another California City to Ban Smoking in Condominiums - What is Your Association Waiting For?

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

smoking_ban_-_Google_Search.pngI was alerted to a proposed smoking ban in apartments and condominiums by the City Council in Culver City, California. Follow this link to read an article from the Culver City Observer that tells us that the City Council directed the City Staff to prepare a draft proposed ordinance that would ban smoking in any complex of 2 or more units.

We have reported previously about cities banning smoking in multiunit housing - see our prior posts here and here. If a city can ban smoking, so can a condominium or homeowners association. In fact, some of our clients are moving forward with smoking prohibitions in their CC&Rs and have been able to successfully enforce the prohibitions without having to file any lawsuits.

There is no doubt that enforcement will continue to be a challenge. But as more and more people stop smoking, and as more and more people become intolerant of having to smell or inhale secondhand smoke, it seems reasonable that community associations should be able to prohibit smoking.

If you would like more information about the process of amending your association's governing documents to prohibit smoking, contact our office.

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

August 19, 2014

Community Associations, Like the City of Los Angeles, Face Difficult Questions: Who Pays To Fix Broken Sidewalks And Other Common Area Components?

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

Los_Angeles_Broken_Sidewalks_-_Google_Search.pngAn article in the LA Times tells us that the City of Los Angeles is facing an interesting dilemma; one that we find is often faced by California community associations. The City's sidewalks are in terrible shape, broken up by tree roots. The question is, who should pay the cost of the repairs? According to the article, "state law is ‘crystal-clear’ in leaving property owners responsible for fixing and maintaining their sidewalks."

Case law also holds that if the owner of the property adjacent to the sidewalk has planted or is maintaining a street tree, even though the sidewalk is the responsibility of the City, the owner can be responsible for injuries suffered as a result of a trip and fall accident. See our prior blog post entitled “California Community Associations May Be Liable for Injuries Suffered in Trip and Fall Accidents on City Sidewalks.

The broken up sidewalks have generated a lot of personal injury trip and fall claims against the City from injured persons walking on the sidewalks. They have also generated claims by disabled individuals who argue that the broken up sidewalks violate their rights to public access.

Continue reading "Community Associations, Like the City of Los Angeles, Face Difficult Questions: Who Pays To Fix Broken Sidewalks And Other Common Area Components?" »

August 14, 2014

Noisy Nuisance or Mass Movement? Public Dancing Disturbs Quiet Enjoyment in China’s Condos

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

Dance_Craze__In_China__Retirees_Raise_a_Ruckus_by_Getting_Down_-_Google_Search-1.pngWe often get calls from Board members and managers asking us to help them with noise problems. Usually, the complaints involve hard surface flooring, loud stereos or TVs, prolonged or loud dog barking, or a tenant who plays a musical instrument for several hours a day, especially on the weekend or in the evenings.

In China, which is apparently experiencing a condominium-building boom, they have a different kind of noise problem: public dancing to loud music. These aren’t raves; they’re daily occurrences. And the rowdy crowd isn’t twenty-something millennials. They’re grandmothers, women in their 50s and 60s, about 100 million of them. Even in China, this is not an inconsequential number. This was the subject of a recent article in the Wall Street Journal.

The dancing – whether it’s traditional, patriotic, or China’s version of rap or hip-hop, is a problem for people who choose to relax in quieter ways, and whose quiet enjoyment of their units is disturbed. Some paid extra for their units for the peace and quiet. Terms to buy a condo can be stiff in China. For example, in one complex, a $300,000 unit required 50% up front, and the balance within three years. These owners are arming themselves with decibel meters, and working to get laws passed to create “Quiet Zones”.

Continue reading "Noisy Nuisance or Mass Movement? Public Dancing Disturbs Quiet Enjoyment in China’s Condos" »

August 12, 2014

Many HOA Owners Could Learn From Robin Williams and the No Asshole Rule

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

robin_williams_net_worth_-_Google_Search.pngRobin Williams is dead. We lost a great talent, a very funny man. As one commentator wrote, the world is a lot less funny today.

I read an interesting article about Robin Williams and the No Asshole Rule. Not surprising, it is reported that Robin Williams was NOT an asshole. Apparently he treated others with warmth and respect. If only homeowners at community associations followed the No Asshole Rule. Just saying...

Robin Williams, rest in peace. You will continue to make us laugh with all the movies and other entertainment that you have left behind.

David Swedelson is a fan of Robin Williams. He is also a condo lawyer and HOA attorney and has had to deal with many owners who do not follow the No Asshole Rule. David can be contacted by others who follow the Rule via email: dcs@sghoalaw.com

August 12, 2014

Governor Signs AB 2430 Into Law; Amends Civil Code Sections 4828 and 4530; Changes Seek to Clarify Community Association Transfer Disclosure Obligations

By Mark Petrie, Paralegal/Marketing Coordinator and David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys.

condo_disclosures_-_Google_Search.pngNew legislation amending two of the transfer disclosure sections of the Davis-Stirling Act, Sections 4528 and 4530, will be effective January 1, 2015. Follow this link to review the changes and new language that will be effective next year.

As you may be aware, Section 4530 establishes the responsibility of an association to provide copies of governing documents, certain financial disclosures and other documents to an owner, or any other recipient authorized by the owner, within 10 days of receipt of a written request for same. The requirement to provide documents and information applies to the sale of a unit (in a condominium building), lot (in a planned development) or stock (in a co-op). We would have liked to have seen a change here to delete “any other recipient authorized by owner”, as there are issues raised by the association providing transfer disclosure documents directly to parties other than owners, e.g., the association has no privity of contract with those parties. But for now, the current language will remain.

We regularly advise our association clients to include a disclaimer when directed by an owner to provide transfer disclosure documents directly to a third party: “These documents are being provided to you in the limited scope of complying with a request of the owner of the unit/lot for same in accordance with Civil Code Section 4525, et seq. The delivery of these documents to you shall not constitute establishment of privity between you and the association, and such delivery shall not create any further responsibility for the association with respect to further disclosure of documents to you.”

Continue reading "Governor Signs AB 2430 Into Law; Amends Civil Code Sections 4828 and 4530; Changes Seek to Clarify Community Association Transfer Disclosure Obligations" »

August 4, 2014

L.A. Street Repair Agency Riddled With Problems; Owners at Community Associations Would Never Tolerate Such Mismanagement

Report by David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

L_A__street_repair_agency_riddled_with_problems__audit_finds_-_LA_Times.pngAn article in the LA Times last week reported that Los Angeles City auditors revealed that the bureau charged with fixing and maintaining Los Angeles' streets is plagued with problems that include failing to collect or spend hundreds of millions of dollars, keeping shoddy records and neglecting to address the most heavily trafficked roads first. Follow this link to read the article.

Below are some highlights and comments. And as you read this, think about what would happen at a community association that so badly managed maintenance and repair. I know what would happen; the owners at the association would be very unhappy. And they would let the board know just how they feel. So why aren’t more people letting the city know just how they feel about the situation?

Continue reading "L.A. Street Repair Agency Riddled With Problems; Owners at Community Associations Would Never Tolerate Such Mismanagement" »

July 29, 2014

California Legislature Says it’s OK if the Owner’s Lawn is Brown; Governor Brown Signs AB 2100 Into Law and it Takes Effect Immediately

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

brown_grass_at_California_state_capitol_-_Google_Search.pngEarlier this year, I attended a legislative action day in Sacramento. I was surprised by the number of bills being proposed to deal with the drought, with many of them focused on community associations. As the state of emergency with our water supply in California drags on, state and local governments continue to get more aggressive with addressing water use. They do not want us using all that much. And they do not care if an owner’s lawn turns brown.

I recently attended a meeting at an association in Santa Barbara. The association’s large expanse of green grass was turning brown. Turns out that Santa Barbara has issued strong ordinances regulating the watering of lawns; the association can only water their grounds for ten minutes, once a week.

At the state level, the first of several bills that address watering of lawns/landscaping has become law. On July 21, 2014, AB 2100 was signed into law by Governor Brown, which adds a new subsection (c) to Civil Code Section 4735:

(c) Notwithstanding any other provision of this part, an association shall not impose a fine or assessment against a member of a separate interest for reducing or eliminating the watering of vegetation or lawns during any period for which either of the following have occurred:
(1) The Governor has declared a state of emergency due to drought pursuant to subdivision (b) of Section 8558 of the Government Code.
(2) A local government has declared a local emergency due to drought pursuant to subdivision (c) of Section 8558 of the Government Code.

And in case you had not heard, yes, the Governor declared a state of emergency as of January 17, 2014 due to drought. So, for as long as a state of emergency is in effect, California homeowner’s associations cannot fine association members for failing to water their vegetation or lawns.

One of the issues that we have been addressing with legislators was the potential fire danger. We can live with a brown lawn, but what about an owner that allows the grass to grow high and then stops watering? This tall, dead grass could be a brush fire hazard. The new legislation does allow an association to compel an owner to cut down their brown grass or dead plants so it is not a fire hazard. But no fines can be levied merely because an owner has decided to stop watering their landscaping.

What does this mean for past violations for which owners have been penalized with fines pursuant to notice and hearing? As long as the fine was not imposed (i.e. the notice of the board’s decision to levy the fine sent to the owner) during a state of emergency, an association should still be able to enforce the fine. However, there is no mention in the new legislation of what happens to fines that have been imposed on or after January 17, 2014 but before July 21, 2014, which is the effective date of the new subsection (c) above. It is unclear how a court would decide in such a case. We will have to wait and see.

Lets all hope for lots of rain this winter. We really need the water.