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.

December 12, 2014

Condo/HOA Transfer Document Disclosure Fees: Changes You Need to Know

By the Community Association Attorneys at SwedelsonGottlieb

solicitor-meeting.jpgMost associations have provided transfer disclosures/documents to an escrow at some point when an owner is selling his or her unit/home or property in a community association to a prospective purchaser. This task is usually completed by the association’s managing agent. Sections 4528 and 4530 of the Civil Code govern the requirements for complying with an Association’s escrow disclosure requirements. AB 2430, which amends Civil Code Sections 4528 and 4530 and is effective as of January 1, 2015, now provides some helpful points of clarification and one major affirmation of California case law.

First, AB 2430 now provides that it is the responsibility of a seller to compensate the association, person, or entity that provides the required documents to the prospective purchaser. This is the first time the Davis-Stirling Act has expressly made clear that the fees charged by an entity other than the association (e.g., management companies) are the responsibility of the seller. This change now makes the Civil Code on par with California case law. See our previous article to learn about the California cases which paved the way for this new legislation.

The revised law changes the statutory disclosure form (Civil Code Section 4528) which must now itemize and separately state the cost for providing each document to a selling owner or a recipient authorized by the owner. AB 2430 also clarifies that the written estimate of fees for providing the requested documents must be sent prior to processing the request. Associations will also be prohibited from bundling documents not required by Section 4530 with the documents that are required under the statute. The new law also requires that the fees for any statutorily required documents be distinguished from, separately stated, and separately billed from all other fees, fines, or assessments billed as part of the transfer or sales transaction.

These changes to the Civil Code may seem innocuous; however, if an association and its managing agent are not on the same page when it comes to disclosure procedures, the association could be liable for all actual damages, all attorneys’ fees incurred by an owner, and a civil penalty for noncompliance. Board members and managers need to have a discussion now regarding the association’s compliance with the new law.

Have questions regarding transfer disclosures? Follow this link to our Annual Disclosure Checklist, which includes a checklist for transfer disclosures beginning on page 10.

November 19, 2014

California Community Associations Cannot Deny or Reject an Architectural Application Merely Because the Owner Failed to Obtain Prior Approval

By David Swedelson, Esq., SwedelsonGottlieb, Community Association Attorneys

Home.pngA manager at a planned development community association we represent contacted me regarding a dispute with an owner. The board was refusing to allow the owner to make a change to the common area solely because the owner had made a change without first submitting a plan and obtaining the required prior approval. I was informed that the board was refusing to provide approval as punishment for the owners’ actions. And the board was doing this despite the fact that the owner had come to them with two options that would have minimal impact on the common area and/or the aesthetics of the association, and the cost for the owner to bring the property back to its prior conditions would have been very expensive. The owner was not happy, and there were some rumblings of a lawsuit. I had to tell the manager and the board that their approach was not appropriate and that there was a possibility that the association could lose if a lawsuit were to be filed.

What I describe above is not an atypical board response to an owner’s failure to seek prior approval for a modification. It is not the correct response, and it can lead to lawsuits that associations may lose. We know this because the Court of Appeal has decided a similar case and told us that California community associations must consider the plans and approve or disapprove the proposed modification based on the usual and customary factors, such as impact on the common area, on the community, neighboring owners, etc. Boards need to show that their actions were regular, fair, and reasonable as a matter of law. Refusing to consider an owner’s plans for a modification because the owner had already made the modifications without approval is not a fair or reasonable response.

In the case of Ironwood Owners Association IX v. Solomon [(1986) 178 Cal.App.3d 766], the Court held that the association was not entitled to a mandatory injunction on summary judgment requiring the Solomons to remove palm trees they had planted in their yard without seeking the required prior approval. The denial was on the basis that the association did not establish that its actions were fair and reasonable as a matter of law.

An association that is seeking to enforce its governing documents must demonstrate that it has followed its own standards and procedures and that those procedures were fair and reasonable. The association must also show that the substantive decision was reasonable, not arbitrary or capricious, and made in good faith.

Follow this link to view our entire printed article.

November 6, 2014

Senior Partner Sandra Gottlieb Nominated for CAI-GLAC's Award for Excellence in Education

IMG_1482%20copy.pngSwedelsonGottlieb Senior Partner Sandra Gottlieb was recently honored by the Greater Los Angeles Chapter of the Community Associations Institute with a nomination for the chapter's award for Excellence in Education. Sandra was nominated as a result of her January 2014 presentation, Hoarders, Board Member Hostility & Controlling Rental Tenants. Slides from Sandra's presentation appear below (if you are reading this post via email, click through to see the presentation).

If your homeowners association is located in the Greater Los Angeles area, be sure to get involved with CAI-GLAC and take advantage of all the terrific educational programs that they offer, some of which are free to board members and managing agents. Our attorneys are frequent speakers at their events, so be sure to watch for when we'll be there. And if you're in a different area of California, find your local chapter on CAI's national website.

[Pictured: Left, Joan Urbaniak, CAI-GLAC Executive Director; Right, Sandra L. Gottlieb]


October 23, 2014

How Much Can a Community Association Management Company Charge for Escrow Transfer Disclosure Documents? Whatever the Competitive Forces of the Market Will Allow

Brown v. Professional Community Management, Inc.,
Berryman v. Merit Property Management, Inc., and
Fowler v. M & C Association Management Services, Inc.


hoa_escrow_fees_california_-_Google_Search.pngA question that we are often asked is, "How much can the association or its management company charge for the work done to complete the association’s escrow disclosure requirements?" The Davis-Stirling Act, which governs California community associations, specifically covers document transfer disclosure when an association member is selling his or her property. The Code does not specify any limits on what can be charged for providing hard copies of all of the documents and disclosures. This has led to disputes. Fortunately, we have three appellate court decisions that have come down over the last decade that have clarified and confirmed what fees can be charged to owners and by whom.

Download our full article on this subject by SwedelsonGottlieb attorneys David Swedelson and Cyrus Koochek.