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.

July 24, 2014

Are Your HOA’s Residents Playing by the Rules? David Swedelson Will Be Speaking On Rule Enforcement on July 30, 2014

screen-capture-27.pngHave you seen SwedelsonGottlieb Senior Partner David Swedelson present his Playing by the Rules seminar yet? Be sure to catch his next offering of this popular program with co-presenter Craig Phillips on July 30, 2014 at 8:00 a.m. in Valencia. The program is free to HOA board members and managers who preregister.

Topics covered include handling rule enforcement issues, the hearing process, the fining procedure and how to collect fines.

Follow this link to register for the event.

July 24, 2014

Want To Preserve The Right To Restrict The Installation of Radio Antennas At Your HOA? Oppose U.S. House of Representatives Bill 4969

The National Chapter of Community Associations Institute (CAI) recently sent out the following urgent message, which we are reproducing here in its entirety. If you want to preserve the right for homeowner associations to be able to restrict the installation of radio towers and antennas, you need to read and act on this important information:

Last month, U.S. Rep. Adam Kinzinger (R-IL) introduced H.R. 4969, legislation that may invalidate community association rules and architectural standards that govern 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.

We need your help to stop this legislation. Follow this link that will help you email your member of the U.S. House of Representatives.

Thank you for engaging in this important effort to preserve America's community associations' ability to allow elected neighbors to create rules for the benefit of the community as a whole.

July 24, 2014

Join SwedelsonGottlieb at the Relay for Life

screen-capture-18.pngLooking for a fun, healthy way to support a great cause? This Saturday, SwedelsonGottlieb staff will be teaming up with the Greater Los Angeles Chapter of Community Associations Institute in the American Cancer Society's Relay for Life. Come on over to Santa Monica and join us this Saturday, July 26th at 10:00 a.m.

Follow this link to register for the event. Select the "SIGN UP" button, then find the button that says "JOIN A TEAM" and use the drop-down list to find CAI-GLAC and join the team.

Thanks for your support!

July 23, 2014

“Spot” Amendments to Association Governing Documents

By W. Alexander Noland, Esq., Partner and Mark Petrie, Marketing Coordinator, SwedelsonGottlieb

spot_-_Google_Search.pngWe are often asked about what portions of an association's CC&Rs and Bylaws need updating to reflect current state statute and best practices. The answer is usually simple — everything! Due to the reorganization of the Davis-Stirling Act effective January 1, 2014, which included many substantive changes, plus many other statutory changes that have occurred within the past 10 years, many associations' governing documents have ceased to be reliable resources for effective governance and operation of an association. We are currently assisting many of the firm’s clients with complete amendment and restatement of their CC&Rs, Bylaws, Rules and Policies.

But what if your association just doesn’t have the time or money to commit to a full amendment and restatement, but would still like to make some improvements to your association’s governing documents? We suggest the board consider some "spot" amendments.

Continue reading "“Spot” Amendments to Association Governing Documents" »

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" »