HOA Law Blog

Blog post by Sandra Gottlieb, community association attorney and Senior Partner at SwedelsonGottlieb

California community association attorneys, managers and others in the industry have differing opinions on how to properly and legally proceed with uncontested elections — elections in which the number of candidates is less than or equal to the number of board positions needed to be filled. Prior to 2006 when the election process and procedures were changed and secret elections were mandated, the answer was simple. No election was required, and candidates were deemed the elected board by way of acclamation. Since 2006, the law has changed, and elections must be held by way of a secret ballot process. Some attorneys know that the days of deeming the board elected by acclamation are over; others think the opposite.

Continue reading "Don’t get Acclimated to Election by Acclamation" »

By David Swedelson, Condo Lawyer and HOA Attorney at SwedelsonGottlieb, Community Association Attorneys

As we reported in November of 2011, California anti-discrimination law now recognizes a new definition of gender that includes gender identity and transvestitism. Recently, this became an issue for one condominium association we represent, and it could be an issue for others if they are not careful.

Here are the facts (which I have modified to protect the privacy of those involved). One of our condo association clients has a longtime owner that had been active in his community. His name was Frank. Over time, the association’s board and management noticed that Frank was changing; he grew his hair long, his voice became higher and he started to wear women’s clothing and makeup. And he asked the board, management and his neighbors to start calling him Francine, telling them that he had always felt more like a woman and was changing his gender.

Continue reading "Harassment Of Transgender Homeowners and Condo Residents Is Discriminatory And Could Lead To Litigation " »

By David Swedelson, Condo Lawyer and HOA Attorney; Senior Partner at SwedelsonGottlieb, Community Association Attorneys

Sometimes, owners sue their condo or homeowners association in small claims court. And sometimes, they win, and there is a judgment to be satisfied. The association pays the amount of the judgment and then wants a receipt showing that the judgment is not owed any longer. They do not know what to do when a judgment or a portion of a judgment has been satisfied. How do you get the homeowner creditor, flush with the fruits of their lawsuit, to provide their association with an "acknowledgment of satisfaction of judgment" (the form that should be completed and filed with the court to show that the judgment is no longer owed)? Board members and managers often ask why they would bother taking this step since the judgment is satisfied.

As soon as a judgment or a portion of a judgment has been paid and therefore satisfied, the association should insist — and the homeowner or their attorney should see to it — that an acknowledgment of satisfaction of judgment or an acknowledgment of partial satisfaction of judgment is prepared, filed with the clerk of the court where the judgment was obtained, and recorded with the county recorder's office in each county in which an abstract of judgment has been recorded.

Continue reading "Get A Satisfaction Of That Judgment" »

Great news. AB 1360 (Torres) - the HOA Electronic Balloting bill - passed through the Assembly Housing Committee with a 7-0 vote thanks to the phone calls you made in response to CAI-CLAC's call-to-action. As reported by CLAC, this bill is now headed to the Assembly floor! And then over to the Senate. We will keep you updated as more calls may be necessary.

AB 1360 is a bill to make electronic balloting an option for common interest developments (CIDs). It was introduced into the California Assembly, authored by Assemblymember Norma Torres and sponsored by the California Legislative Action Committee (CLAC).

CLAC's website states that current law requires community associations to follow a double-envelope process for elections. AB 1360 would permit the use of electronic voting, adding an additional option to election procedures, reducing costs for community associations, and helping to increase voter participation.

Currently, common interest development association elections are subject to specific procedures, which are more restrictive than other non-profit corporations. In 2006, SB 1560 passed and although it was designed to improve the way elections were performed, it also dramatically increased costs, as the entire election process must be now be repeated until a quorum is achieved. This forces associations to spend thousands of dollars each year to conduct elections, which could instead be used to help maintain properties and the interests of community members.

We previously posted an article about this legislation that will allow electronic voting by members of California Community Associations. Follow this link to read that post. Follow this link to read the text of AB 1360.

Blog Post by David Swedelson, Condo Lawyer and HOA Attorney, Partner at SwedelsonGottlieb, Community Association Attorneys

All too often, we hear from managers and board members who ask us to help interpret what the contractor was talking about when he referred to missing flashing, the damage to the fascia board and some dry rot that was found when the wall and ceiling were opened up. Or, we hear from the contractor that tells us he does not know what to inspect or fix, as all he was told was to look at the "hangy thing." Contractors do speak their own language, much like lawyers that speak legalese. It is important to understand the terms that contractors use so that you can understand what they are talking about and are better able to communicate the problem.

Bill Butler from PrimeCo Painting and Construction compiled such a list with definitions of some of the common elements of a typical building structure. That way, when the contractor says soffit, you will know that he is talking about that “hangy part” of the building that is found frequently over patios or entries.

Continue reading "What The Heck Is Flashing, Or A Fascia Board, Or A Joist Hanger? Do You Speak Contractor?" »

By David Swedelson, Condo Lawyer and HOA attorney; Senior Partner at Swedelson Gottlieb, Community Association Attorneys

Many California community associations have a difficult time achieving a quorum to hold board elections or to vote on other important association matters. Some condo and planned development homeowner associations have not been able to hold a vote for a new Board of Directors for many years because they require a quorum of at least 50% of the owners. And unlike many other community associations, they do not have a reduced quorum provision in their bylaws that allows them to hold the meeting and take the vote of the owners with 25% of the owners constituting a quorum. Some associations cannot even achieve a quorum with just 25% of the owners.

While it's easy to say that this is a problem that impacts community associations, the fact is that many people just don't care enough to vote even when it comes to the elected officials that run their city, state or their country. Voter apathy is not just a community association problem. And that is too bad, as the right to vote is a privilege; it is how each citizen has a say in how our government is run.

Continue reading "Voter Apathy — It is not Just a Community Association Problem" »

CAI's California Legislative Action Committee sent out an alert requesting that we all place as many calls as we can today (Tuesday April 30, 2013, before 5:30 PM) to the California Assembly Housing and Community Development Committee Members referenced below to leave 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 text of AB 1360.

Continue reading "Please Call Today to Support AB 1360 and Electronic Voting" »

By David Swedelson, Condo Lawyer and HOA Attorney, Partner, SwedelsonGottlieb, Community Association Attorneys

A pipe, window or some other element of the common area leaks or breaks, and a condo association board decides that it is exclusive use common area and the unit owner’s repair and/or replacement responsibility, as it serves only that one unit. The problem is that this is not what the law provides. And while it may be what many board members and managers want to see happen, this is really contrary to the condominium concept where, unless the CC&Rs otherwise state, the association is responsible for the repair or replacement of the common area, and exclusive use common area is part of the common area. Let's face reality, we really do not want to see owners opening up and trying to repair the common area, as they may likely not do the right repair, and that may come back to haunt the association in the future (after that owner has sold and moved).

Continue reading "Exclusive Use Common Area — It’s Complicated, Misunderstood and, Hopefully, Soon to be Clarified" »

By David Swedelson, Condo Lawyer and HOA Attorney; Senior Partner at SwedelsonGottlieb, Community Association Attorneys

Every condo or homeowners association has one, that one owner that does not follow the rules, violates the CC&Rs, creates a nuisance or worse. The "bad" owner, the one that does not belong in a deed restricted community. And we often hear complaints from other owners suggesting that the bad neighbor is bringing down property values at their association. Turns out they may be right. According to a recent article in the New York Times regarding a neighbor’s effect on appraisals, “[w]hen calculating the value of a property, an appraiser also factors in surrounding conditions. Neighborhood nuisances, like an overgrown yard or a persistent odor, could in some cases bring down the value of adjacent homes by 5-10%...”

Continue reading "Community Associations' Failures to Deal With Bad Neighbors Could Have a Negative Impact on Property Values" »

Blog post by David Swedelson, Condo Lawyer and HOA Lawyer; Senior Partner at SwedelsonGottlieb, Community Association Attorneys

I recently read an interesting article in the newspaper regarding structural defects. The article entitled “Home Structural Defects Are Rare But Can Be Costly” provides good advice for both homeowners and condo owners and associations. Follow this link to read the article.

The article points out that new homes are rarely perfect. “Houses are giant puzzles with hundreds of parts, manufactured at different locations and carried to the building site. And try as they might to put together a flawless product, builders and the numerous subcontractors don’t always get things right.” This is so true.

Over the last 30 years that I’ve been representing condominium and homeowners associations, I have rarely seen a condominium unit or homes in a planned development where there haven’t been some “defects.” And as a consequence, SwedelsonGottlieb has filed and successfully resolved dozens of construction defect cases over the years. And as the article points out, most of the defects we find don’t relate to structural failures.

Continue reading "Condo and HOA Structural Defects Are Rare, But Can Be Costly" »

By Joan Lewis-Heard, Community Association Attorney/Litagator; Edited by David Swedelson, Senior Partner at SwedelsonGottlieb.

So, your condo or homeowners association foreclosed on an assessment lien and is unfortunately the owner of a unit or home at the association. Not what the association wanted, but a reality as a result of the Great Recession. As this situation is not untypical for landlords, it is dealt with by the California Civil Code.

For the purposes of this discussion and issue, the former owner is considered a tenant as the association is now the owner. Where personal property remains on the premises/in the unit after a tenancy has terminated and the premises/unit has been vacated by the tenant, the association must give written notice to the tenant/former owner and to any other person the Association reasonably believes to be the owner of the property.

Continue reading "Condo or HOA Foreclosed-What To Do With Abandoned Property In California " »

Blog post by David Swedelson, Condo Lawyer, HOA Attorney and head of SwedelsonGottlieb’s Litigation Team

Over the years a number of our condo and homeowner association clients have suffered the loss of homes or units as a result of fires. Some of these fires resulted from smoking in bed, a couple of them resulted from propane tanks leaking or exploding, some from clogged dryer vents, bad appliances, and many from brush fires. In fact, I just recently completed a trial involving a dispute over the design of an owner's proposed new home that the homeowner wanted to build after their original home was burned to the ground as result of a brush fire. That fire alone destroyed their home and significantly damaged eight others. Many of these fires could have been prevented.

Continue reading "Are the Homes At Your HOA Fire Safe?" »