April 17, 2015

HOA Approval Requirements For Solar Systems Have Changed; Is Your California Homeowners Association Complying With The New Law?

solar-energy-santa-rosa.pngRegular readers of hoalawblog.com may recall our prior blog post regarding the new law impacting architectural applications for and installation of solar energy systems. Since then, SwedelsonGottlieb's new Senior Associate Attorney, Brian Moreno, joined the firm, and he penned his own in-depth look at what the new law means for California homeowner associations. Brian's article appeared in a recent issue of The Communicator, published by the Bay Area / Central California Chapter of Community Associations Institute. Follow this link to read/download Brian's informative article.

April 15, 2015

SwedelsonGottlieb Assists HOA’s Successful Effort To Make Individual Buildings Become Smoke-Free

By David C. Swedelson, Esq. and Mark Petrie, Marketing Coordinator at SwedelsonGottlieb, Community Association Attorneys

united_at_laguna_woods_and_smoking_-_Google_Search.pngComplaints about secondhand smoke are increasing, and many associations are looking for options for dealing with the issue. Many boards want to propose an amendment to the association’s governing documents but are concerned about enforcement, as they know that there are some smokers living at their associations.

If your development is made up of several detached buildings, each of which contain multiple units, you may want to consider an innovative alternative – amending the governing documents to allow the owners of each individual building to self-determine that their building will be smoke free! We did this for one of our clients, setting up a process by which the owners of a building can unanimously apply to the board for designation as a permanently smoke-free building.

Check out this story about United Laguna Woods Mutual and the successful approval of such an amendment to their occupancy agreement (United is a stock cooperative). As stated in the article, shareholders in one building obtained designation of their building as smoke-free. Our attorneys at SwedelsonGottlieb worked with United’s Board to prepare the amendment and related documentation that led to this development.

Interested in pursuing a no-smoking amendment to the governing documents of your association? Contact SwedelsonGottlieb today at 800-372-2207 so we may discuss the alternatives that are available to you. Ask for Mark Petrie, who can also be reached via email: mark@sghoalaw.com

April 13, 2015

The Davis-Stirling Common Interest Development Act Is Celebrating Its 30-Year Anniversary: Let’s Celebrate

The following is an excerpt from Community Association Institute's California Legislative Action Committee's article, the full text of which can be found here. SwedelsonGottlieb attorney Brian Moreno, Esq. authored the article.

davis_stirling_act_-_Google_Search.pngMuch has changed over the last 30 years. In 1985, the Dow Jones industrial average was at 1500. The Internet’s domain name system was created, and its first domain name was registered. The cost of a gallon of gas was 93 cents. Ronald Reagan was our President. The world was a different place. In 2015, the Dow Jones Industrial Average is now at about 18,000, there are hundreds of millions of active Internet domain names, and the cost of a gallon of gas is… well, that subject is complicated. More significant to the common interest development (“CID”) industry, the Davis-Stirling Common Interest Development Act, known as the Act, was born 30 years ago.

Remarkably, as signed into law by Governor George Deukmejianin on September 18, 1985, the original Davis-Stirling Act was only 25 pages long. It was a whole lot different than it is today. The original Davis-Stirling Act provided a framework that specifies the various rights and responsibilities of all parties involved with common interest developments. The original Act was amended and revised and added to over 50 times until it was completely redone and reorganized. The Act is now over 100 pages long. For the most part, those additional pages represent the countless hours of collaboration, analysis, research and work that our industry professionals have contributed to improving an already comprehensive and inclusive statutory scheme.

March 19, 2015

CAI Renews Its Call To Action Regarding HAM Radio Broadcasting at Homeowner Associations//Oppose Federal HAM Radio Special Interest Demands to Pre-empt Community Associations’ Guidelines

By David Swedelson, Partner at Swedelson Gottlieb, Community Association Attorneys

Hiding_Colors_for_Roof_Array_.pngFederal legislators are still trying to pass new law that would allow HAM radio antenas to be installed at homeowners associations despite any restrictions on same in an association’s CC&Rs. We addressed this in a blog post in September of 2014; follow this link. Although that bill failed, Representative Adam Kinzinger (R-IL) has reintroduced the same bill, now designated as H.R. 1301.

Community Associations Institute (CAI) has again issued a call to action to its members across the country claiming that “if a HAM radio ‘reasonable accommodation’ standard becomes federal law, community associations face the real prospect of having limited or even no say on the installation of towers and large, fixed antennas used in HAM radio broadcasting.”

The proposed legislation says that within 120 days after enactment, the Federal Communications Commission (FCC) will be required to amend the Code of Federal Regulations, so that law prohibits application to amateur service communications of any private land use restriction, including a restrictive covenant, that–
1. precludes such communications;
2. fails to reasonably accommodate such communications; or
3. does not constitute the minimum practicable restriction on such communications to accomplish the legitimate purpose of the private entity seeking to enforce such restriction.

This is largely the same language used with respect to the inapplicability of covenants or restrictions with respect to Over the Air Reception Devices Act that protects a property owner or tenant’s right to install, maintain or use an antenna to receive video programming from direct broadcast satellites (DBS), broadband radio services (formerly referred to as multichannel multipoint distribution services or MMDS) and television broadcast stations (TVBS). According to the FCC, if there is a question as to whether a community association restriction is valid or enforceable, the burden is on the HOA to prove that the restriction or rule does not violate the federal regulations. Should the same process be applied with respect to HAM radios and equipment?
For more information, follow this link to the CAI website.

David Swedelson is a condo lawyer and HOA attorney. He is not a HAM radio operator. He can be contacted via email: dcs@sghoalaw.com

February 24, 2015

How Many Cats Does Your HOA/Condo Allow Each Owner To Maintain In Their Unit or Home? Be Prepared For A Change In City Law

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

Is_This_a_Case_of_Too_Many_Cats____Steve_Dale_s_Pet_World.pngThe Los Angeles Times reports that the Los Angeles City Council is considering an increase in the number of cats that a Los Angeles City resident can own. Seriously? We are often called upon to deal with condo residents that have way too many cats in their units and are unable to properly care for them or their unit. As a result, neighbors complain of odors coming from these units. Not a healthy situation.

According to the article, the goal of the proposed rule change is not to encourage cat hoarding, but to save felines. “We want to give loving community members an opportunity to become part of the solution by adopting and/or fostering altered shelter cats in their homes,” said Brenda Barnette, General Manager, Los Angeles Animal Services. The article indicates that the city is seeking to increase the number of cats that one may own from three to five. The article also acknowledges that enforcement has been lax. I do not see this helping community associations.

A second article published in the Times on this issue pointed out that the motivation for this change would be to limit the number of euthanized cats. Apparently, it is more difficult to place cats for adoption than dogs, and many cats are euthanized.

An update was provided stating that the vote on the new limit would be delayed for 60 days to allow for additional comments and consideration.

The proposed change in the law would allow a person with five cats to have no more than three cats that live part or all the time outdoors. Two of the cats would have to live indoors. There would be no change to the number of dogs that an owner can have; that will remain at three.

This change in Los Angeles law will not impact community associations that have more restrictive language in their CC&Rs, such as stating that owners may maintain only one pet, whether it be a dog, cat or bird. Further, just because the city law says that an owner can have outdoor cats does not mean that residents in a community association can allow their cats to roam an association’s common area. I know from prior experience that many associations have had difficult experiences trying to get owners to keep their cats indoors or on leashes, and not roam the community.

At one association I was working with recently, it was discovered that their roof, which had not been inspected for quite some period of time, was being used as a litter box by a number of cats in that community. I have also received complaints from owners that other owners’ cats that are allowed to roam the community are tearing up the landscaping and creating other problems.

It may be time for community associations to review and reconsider their CC&Rs and Rules & Regulations as they relate to the number of pets that a resident can maintain, and whether cats will be allowed to roam the common area off-leash.

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

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February 17, 2015

SwedelsonGottlieb Associate Cyrus Koochek Receives CAI-OC's Rising Star Award

10519470_10152632044291657_1073214518769593305_o.jpgOn February 6, the Orange County Regional Chapter of Community Associations Institute honored SwedelsonGottlieb's Associate Attorney Cyrus Koochek with its Rising Star award. The award is given to new members of the chapter in recognition of the member's volunteer service and commitment to the chapter's goals. Cyrus served on the chapter's programs committee in 2014 and looks forward to continued success with the chapter this year.

Is your community association located in Orange County? Be sure to check out all the great events and opportunities offered by the chapter for managers and board members at www.caioc.org.

Or, find your chapter here.

February 4, 2015

Welcoming Our New Attorney - Brian Moreno Joins SwedelsonGottlieb

jump-for-joy_jpg_500%C3%97375_pixels.pngHe is finally here, and we could not be happier. Brian Moreno, already a seasoned community association attorney, has decided to move on from the firm he worked with for the last six years and bring his experience, skills and excellent reputation to SwedelsonGottlieb. Brian enhances the firm’s team of lawyers and will certainly benefit the firm’s clients. Brian could have joined any of the other community association law firms, yet he chose SwedelsonGottlieb. That says a lot about Brian and SwedelsonGottlieb.

Brian has extensive litigation and general corporate, real estate and community association legal experience. Follow this link to read Brian’s stellar resume. We hope you will have the opportunity to work with Brian.

January 28, 2015

HOA Tells Owners They Cannot Park Their Pickup Truck in Their Own Driveway - Seriously?

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

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I was recently made aware of a lawsuit filed in Fayetteville, New York by an HOA against homeowners seeking to restrict them from parking their 2014 Ford F-150 pickup truck in their driveway. The association apparently has CC&Rs that limit parking in driveways to only “private, passenger-type, pleasure automobiles.” Many California HOAs have restrictions on the parking of commercial vehicles, and this often leads to debates as to what constitutes a commercial vehicle. At one association we represent, the board was having a serious debate on this, as one board member wanted to ban an owner's truck merely because it was the kind of truck that is used for commercial purposes, but there were no observable indications that the truck was used for commercial purposes.

Follow this link to an article from a Syracuse newspaper on this story. The article has a photograph showing what appears to be a fairly typical pickup truck. The pickup truck in question does not have any markings on it showing that it is used for business, no racks on it for contractors to haul ladders or other equipment, etc. It looks like an everyday pickup truck that regular people use as their personal vehicles.

Continue reading "HOA Tells Owners They Cannot Park Their Pickup Truck in Their Own Driveway - Seriously?" »

January 7, 2015

Summary of New Legislation Effective January 1, 2015

By Sandra L. Gottlieb and David C. Swedelson, Partners and Community Association Attorneys at SwedelsonGottlieb

new_legislation_-_Google_Search.pngThere was not a lot of new legislation in 2014 impacting California Community Associations, and what changes there were seemed to be focused on dealing with the drought. There were also changes to the law relating to solar energy systems, the ability of residents to grow fruits and vegetables in their backyards, to bring their attorney to an IDR meeting, and defining responsibility for the repair and/or replacement of exclusive use common area.

NEW LEGISLATION

The New Davis-Stirling Act:

The big story for 2014 was implementation of the complete rewrite of the Davis-Stirling Act (signed into law prior to 2014 and effective as of 1/1/14). If you have not been made aware of this by now, you likely live in a cave, as the Davis-Stirling Act has been rewritten and renumbered to Sections 4000 through 6150 of the California Civil Code and specifically excludes commercial associations, which now have their own set of laws that are much more abbreviated then the Act. Many association attorneys have prepared conversion charts for their clients which reference the old code sections and the applicable new sections. Contact your association’s legal counsel now if this is your first time hearing about the new Davis-Stirling Act.

Continue reading "Summary of New Legislation Effective January 1, 2015" »

January 6, 2015

New Law (Effective January 1, 2017) Clarifies Responsibility for Maintenance and Repair of Exclusive Use Common Area

By David Swedelson, Partner and Community Association Attorney at SwedelsonGottlieb

balcony%20copy.jpgSince the inception of the Davis-Stirling Act in 1985, there has been confusion regarding owner vs. association responsibility for the repair or replacement of exclusive use common area. AB 968, legislation sponsored by the Educational Community for Homeowners (ECHO), signed into law by the Governor on September 18, 2014, brings us long-needed clarification. We strongly supported this legislation (surprisingly, as will be explained below, many others did not), as it clears up some of the ambiguities created by what was formerly Civil Code Section 1364, now Civil Code Section 4775.

Civil Code Section 4775 currently states that unless otherwise provided in the CC&Rs, a community association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area. The homeowner of each separate interest is responsible for maintaining their separate interest (their unit or home) and any exclusive use appurtenant (attached or next to) their separate interest.

So, while Civil Code Section 4775 has addressed who is responsible for the maintenance, repair, and replacement of the common area, this code section only dealt with the responsibility for maintenance of the exclusive use common area, or so that is how many interpreted the code section.

Continue reading "New Law (Effective January 1, 2017) Clarifies Responsibility for Maintenance and Repair of Exclusive Use Common Area" »

January 5, 2015

Legislature Says Homeowners Can Bring Their Attorney to Internal Dispute Resolution (IDR) Meetings (and we all thought that IDR was supposed to be an informal process)

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

Benefits_of_Alternative_Dispute_Resolution___Lawyers_com.pngAB 1738 is new law that amends Civil Code Sections 5910 and 5915 and makes two major changes to the requirements of internal dispute resolution (IDR) meetings held between an association’s board and its members. We opposed the adoption of AB 1738 (like just about everyone else who works with California HOAs) and discussed the reasons why in our September 3, 2014 blog article. AB 1738 has since been signed into law and became effective California law as of January 1, 2015.

Here are the big changes – first, any agreement between the parties during IDR must be in writing and signed by both parties. This is a common sense requirement and will prevent any complaints about what was actually agreed to between an association and owner. More problematic, however, is the addition of language that now permits members to be represented by an attorney (or another person explaining the member’s position). The new changes that now allow members to bring an attorney will, without a doubt, end up costing community associations more money for legal fees, as more members may decide to be represented by their attorney, which will in turn require the association to have its attorney present.

Continue reading "Legislature Says Homeowners Can Bring Their Attorney to Internal Dispute Resolution (IDR) Meetings (and we all thought that IDR was supposed to be an informal process)" »

December 12, 2014

New Law Impacting the Installation of Solar Energy Systems Effective January 1, 2015 - Is Your Community Association Prepared?

By the Community Association Attorneys at SwedelsonGottlieb

screen-capture-53.pngUnder Civil Code Section 714, a California community association can restrict its members’ installation and use of solar energy systems so long as the restrictions do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance. “Significantly” used to be defined (through 12/31/14) as increasing the costs of the system by 20% (or $2,000 for photovoltaic systems) or decreasing the efficiency of the system by 20%.

AB 2188, effective January 1, 2015, redefines what reasonable restrictions an Association can require and amends Civil Code Section 714. Specifically, the new law has cut by half an association’s ability to restrict solar energy systems installed by members. A significant increase in the costs of a system will now mean an increase of 10% (or $1,000 for photovoltaic systems), and a significant decrease will now mean a reduction in the efficiency of the system by 10%. An association must now be even more careful with the conditions or limitations it places on an owner who wants to install a solar energy system.

The new law also reduces the time period an association has to approve or deny an application for the installation of a solar system. Formerly, the Civil Code stated that if an application is not denied in writing within 60 days of the submission by the member, the application will be deemed automatically approved. That time period has been reduced to 45 days. As a result, boards and architectural committees must be even more diligent in their review and consideration of applications for new solar energy systems.

It is also worth noting that AB 2188, as reflected in Government Code Section 65850.5, prohibits a city and/or county from conditioning the approval of any solar energy system permit on approval of that system by an association. Because the city/county no longer needs to review association approval prior to issuing a permit, this could have the effect of speeding up the approval process in addition to the 15 less days an association has to make a decision. We recommend that boards and managers tread carefully and consult legal counsel as necessary with respect to solar energy system approvals, because in any action to enforce violations of the solar energy system statute, attorneys’ fees will be awarded to the prevailing party.

For more information regarding solar energy systems and California community associations, please follow this link to our article which has been updated to reflect the new 10% limitations.