January 28, 2010

A Building Component Does Not Become Common Area Just Because It Was Placed or Built On The Common Area

A Building Component Does Not Become Common Area Just Because It Was Placed or Built On The Common Area; Homeowner Cannot Escape Maintenance Responsibility Based Upon Developer's Mistake. Chen v. Fairmont Terrace Homeowners Association (2001) 2001 WL 1191483 (Cal.App.4 Dist.) Not Officially Published
This is a case that was handled through appeal by Swedelson & Gottlieb Partner David Swedelson.

Owners will often insist that their association is responsible for maintaining or repairing a building improvement or component that would normally be their responsibility merely because of where it is located. Nathan Chen found out the hard way that where the component is located is not the criteria.

Continue reading "A Building Component Does Not Become Common Area Just Because It Was Placed or Built On The Common Area" »

December 31, 2009

Accidental Voicemail Spills the Beans--Be Careful Out There

We have all heard stories about accidental e-mails. How about accidental voice mails? I guess it can happen. The Los Angeles Daily Journal reported that a lawsuit is moving forward based on a voicemail that was accidentally left on an attorney's system. The article states: "The three men thought they had hung up after leaving a message for one of Jasmine's in-house lawyers, but the voicemail continued to record as they openly discussed the theft of trade secrets on speakerphone. Marvell fought all the way to the California Supreme Court to get the voicemail erased based on attorney-client privilege, but the court punted the case back to the 6th District, allowing to stand its ruling that the lawyers waived the privilege by discussing possible fraud."

If you are discussing confidential matters, it is best to make sure that you keep it confidential. Be careful out there.
Click here
to read the article

December 11, 2009

IS THE “GREAT RECESSION” OVER YET? FOR CALIFORNIA COMMUNITY ASSOCIATIONS, NOT BY A LONG SHOT!

By: David C. Swedelson, Esq.,
Senior Partner at Swedelson & Gottlieb

Community managers have been telling us over the last year that much of their time has been consumed by matters relating to delinquent assessments. And they are not just referring to the basic mechanics of the collection process. They are also referring to the many questions that come up, the calls and emails from owners and board members, the foreclosure notices, the bankruptcies, and the list goes on. They lament that this is taking them away from doing their core responsibilities relating to maintenance and repair, etc.

Managers and board members alike are concerned about the impact that this recession is having on the communities they govern or manage. They are concerned about the deficit in the budget that is caused by their associations not receiving all of the revenue that was expected when the annual budget was prepared and the resulting lack of money to do all of the maintenance and repair that is required.

Because of the impact the recession is having on our client base, I have been monitoring articles and reports from experts regarding when we might reach the end of what is now being called the “Great Recession.”

Continue reading "IS THE “GREAT RECESSION” OVER YET? FOR CALIFORNIA COMMUNITY ASSOCIATIONS, NOT BY A LONG SHOT! " »

December 9, 2009

How to Perfect an Assignment of Rents Clause in CC&Rs

By Joan E. Lewis-Heard, Esq.
Senior Associate; Swedelson & Gottlieb

For those community associations whose CC&Rs provide for assignment of rents from a tenant in the event an association owner who is renting their unit or home is delinquent in the payment of assessments, an association may collect the rent directly from the tenant to pay delinquent assessments.

If done properly, this can be done without a court order or the expense of a court appointed receiver. In order to do this, the following is required: 1) the CC&Rs must have an assignment of rents clause; 2) a lien for the delinquent assessments should be recorded to secure the debt; and 3) a statutory Demand to Pay Rent to a Party Other than Landlord, pursuant to Section 2938 of the Civil Code, is required to be delivered by mail or by hand to each tenant of the property and the landlord/owner. Follow this link for the required text of the demand to pay rent to party other than landlord.

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December 6, 2009

Can you Avoid Webtribution— Toxic Disinhibition Posted By David C. Swedelson, Esq.; Swedelson & Gottlieb

We see it on the web all the time, articles highly critical of politicians, actors, pop stars and others. Then come the highly inflammatory comments from readers using anonymous names. There are websites where you can critique restaurants, shops, services, etc. Sometimes these criticizers write some of the nastiest things. We are now seeing this type of nastiness on websites set up by disgruntled community association owners.

I recently read an article on the internet that addressed this very phenomena, calling it webtribution. Click here to read the article.

The author comments on people who write nasty reviews for a restaurant or book, “not because they dislike the product, but because they dislike the person who created it. Or signing up an acquaintance for email advertising lists. (I can assure you that if your inbox suddenly fills up with ads for male-enhancement treatments, someone is out to get you.)”

The author asks why we are not mature enough to “resist the temptation to seek Webtribution—even if it seems easy and (we hope) untraceable?
It's simple: The Internet turns us into a mob.“

The author quotes the director of the Massachusetts Aggression Reduction Center (who knew there was such a Center) and professor of psychology at Bridgewater State College in Bridgewater, Mass. "We know that in a mob people will do socially unacceptable things they would never otherwise do." Her answer: "They feel invisible, so they cede responsibility."

The article states that psychologists have actually coined a term for this: the "online disinhibition effect," suggesting that they divide this type of behavior into two categories: "benign disinhibition" (which is what happens when someone says something private they might not have shared publicly with many people offline) and "toxic disinhibition" (expressing rudeness, anger, criticism or hate).

And, the author suggests that we need not look further than the websites that cater to retribution “if you want to see what toxic disinhibition looks like.”

Toxic disinhibition. . .Who knew?!

November 5, 2009

What Makes a Rule Reasonable or Unreasonable?

We are often asked by Boards about what is a reasonable rule. The answer is that I know it when I see it. We prepared an article that addresses this very issue. Click here for that article, "What Makes a Rule Reasonable or Unreasonable? I Know It When I See It!" By David C. Swedelson, Senior Partner of Swedelson & Gottlieb.

November 5, 2009

No, You Cannot Adopt a Rule that is More Restrictive than the Provisions of the Association’s CC&Rs

Knowingly or unknowingly, sometimes boards adopt rules which are in conflict or more restrictive than the association’s CC&Rs. For example, they make specific rules regarding prohibitions on the installation of washing machines when the CC&Rs are silent on the matter. Boards sometimes prohibit hard surface flooring when this is likewise not covered by their association’s CC&Rs. We sometimes see rules that limit the number of or size of animals that homeowners are able to maintain when this is likewise not covered by the association’s CC&Rs. Sometimes, these rules end up in litigation, especially when the board tries to enforce same. Often the board of directors will argue that the court must defer to their discretion when they are performing their duties. While usually the courts will defer to the board of directors when it comes to decisions covered by the association’s governing documents, this is not true when the board has exceeded its authority.

Such was the case involving an association in Orange County, California, where the board decided they were not going to make homeowners “trim” their palm trees to eliminate a view obstruction and made a rule regarding this even though the association’s CC&Rs prohibited any view obstructions from landscaping. Firm attorneys David C. Swedelson and Stephanie M. Rohde have prepared an article entitled “Decisions of Boards of Directors Regarding Enforcement of Governing Documents Cannot Usually Be Second Guessed Unless the Decision is More Restrictive than the CC&Rs.” Click here for a PDF copy of this important and timely article.

November 4, 2009

Swedelson & Gottlieb’s Sandra Gottlieb Elected to Board of Channel Islands Chapter of Community Associations Institute; Will Serve as the Chapter's President-Elect

Swedelson & Gottlieb is proud to announce that our firm's senior and managing partner Sandra Gottlieb has been elected to the Board of Directors of the Channel Islands Chapter of Community Associations Institute (CAI). She will serve as President-Elect in 2010 and as the Chapter’s President in 2011. Sandra looks forward to leading the Chapter to continued success and furthering our firm's committment to supporting California's community associations and all that serve and work with them. She will continue to serve CAI's Orange County Chapter as a Board member in 2010.

If you would like to learn more about Community Associations Institute, visit them at www.cai-online.org

The Channel Islands Chapter has its own website at www.cai-channelislands.org

October 19, 2009

Swedelson & Gottlieb Publishes its 2009-2010 Annual Checklist

It is October, and many association boards of directors and managers are in the process of preparing their associations' 2010 budgets and statutory disclosure mailings. As we have done every year for the last decade, we have posted Swedelson & Gottlieb’s Annual Disclosure and Notice Checklist to assist you with that process. Even if you have already sent out your budget and disclosure package, you may want to review the checklist to make sure that you have not forgotten anything. Note that there are a few changes to statutes. For example, the Notice of Assessments, Foreclosures and Payment Plans pursuant to Civil Code Section 1365.1 has been modified. In addition, there are some new changes effective January 1, 2010 regarding the Assessment in Reserve Funding Disclosure Summary, the creation of a Disclosure Document Index, and other procedural changes. Please check our blog later this week for a summary of those new laws and their application to your associations.

October 9, 2009

SWEDELSON & GOTTLIEB SUPPORTS AB 1328 WE URGE YOU TO LET THE GOVERNOR KNOW TODAY THAT YOU DO AS WELL

You have most likely received emails regarding proposed new legislation that would allow California community associations’ Boards the power to enter into long term contracts for water or energy efficiency programs. After considering the pros and cons as expressed in these emails, we have let the Governor know that we support this bill. We urge you to let him know that you do as well, and you need to do that now, as he will soon be finalizing his decision on this bill.

Here are the facts: The California legislature recently passed Assembly Bill 1328, which is now on the Governor’s desk, awaiting his approval or veto. AB 1328, if enacted, would allow an association to enter into a contract for a water or energy efficiency program for a term of up to five (5) years, if the board reasonably anticipates that the contract will result in savings to the association. The members would not have the right to vote on the contract, but would be given notice of the proposed duration of the contract on the agenda for any meeting at which the contract will be discussed or voted on.

Continue reading "SWEDELSON & GOTTLIEB SUPPORTS AB 1328 WE URGE YOU TO LET THE GOVERNOR KNOW TODAY THAT YOU DO AS WELL " »

August 3, 2009

SANDRA L. GOTTLIEB RECEIVES CACM's Coveted 2009 Vision Lifetime Achievement Award

On July 30, 2009 the California Association of Community Managers (CACM) awarded Swedelson & Gottlieb's senior partner Sandra Gottlieb with the organization's coveted 2009 Vision Lifetime Achievement Award. This is only the second time in CACM's history that it has awarded an affiliate (meaning a member who is not a manager) the Lifetime Achievement Award. This Award was presented to Sandra for all of the time and effort she volunteers to CACM, including her involvement for many years as the editor of CACM's Law Journal, sitting on the Professional Standards Committee, teaching CACM's core courses and all of the other things that she does. To see and hear what the presenters had to say:

June 10, 2009

Homeowner Association is Not Liable for Unforeseeable Injuries Caused to an Owner by a Tenant's Dog

Chee v. Marina Seagate Condominiums, (2006) 143 Cal.App.4th 1360, 50 Cal.Rptr.3d 40.

Lila Chee (“Chee”) is a 71-year-old resident owner of a condominium at the Marina Seagate condominium complex. She was allegedly injured when a Jack Russell Terrier owned by Olga Kiymaz, at the time a tenant in the condominium next door, ran out of Kiymaz’s unit, unrestrained by a leash. The dog jumped on Chee, allegedly causing her to fall and sustain numerous injuries. Kiymaz rented the condominium from unit owner Jerome Brown. Chee filed a second amended complaint against Brown, the Marina Seagate Homeowners Association (“Association”), and others. Chee brought Brown and the Association (and Brown’s property managers who rented the unit to Kiymaz) into the lawsuit after Kiymaz filed for bankruptcy and was dismissed from the action.

Continue reading "Homeowner Association is Not Liable for Unforeseeable Injuries Caused to an Owner by a Tenant's Dog" »