HOA Law Blog

A recent column in the Los Angeles Times addressed an interesting issue regarding assessment collection on units or lots owned by soldiers who are serving in Iraq, Afghanistan or elsewhere.

The article referenced a community association in Texas that proceeded to foreclose on its lien recorded against a home owned by a soldier that was on active duty in Iraq. As the article indicates, while the soldier was in Iraq, his wife was in the home but “suffered from anxiety and depression over her husband’s tour of duty, didn’t open the certified letters informing her that the $315,000 home in Frisco, Texas was about to be sold to collect $977.55 in back dues [assessments] (although by the time the home went to auction, legal costs had ballooned the amount to about $2,600)."

The house was sold in a foreclosure sale, the buyer sold it to an investor, a lawsuit ensued and eventually the parties settled.

The law, the Soldiers and Sailors Civil Relief Act of 1940, was originally enacted during World War II and rewritten in 2003 as the Servicemembers Civil Relief Act (SCRA). The statute protects active-duty military families from foreclosures, evictions and other financial consequences they are not in a position to deal with while on active duty and for up to a year after active duty.

The Los Angeles Times publishes a column entitled Rent Watch. Recently, the column addressed a situation where a tenant maintained in that tenants apartment a seeing eye dog that barked at night bothering the neighbor(s). The answer applies to community associations as well as rental units. Follow this link to read the selected Q&A.

As that column correctly indicates, while community associations (which are considered housing providers for the purpose of fair housing/accommodation matters) are required to reasonably accommodate disabled residents, the accommodation provided to a disabled individual must be “reasonable”. Quoting from the article, “If the dog’s behavior is an unreasonable nuisance to other [residents], the [association] is not obligated to ignore that.”

It may be necessary to contact the resident directly to advise them that while they are able to have their dog in their unit (which may violate the association’s governing documents) their dog is creating a nuisance and they have to deal with that and the dog will have to leave. Otherwise, their request to maintain their dog in their unit is not reasonable so long as it continues to bark and create a nuisance.

This post was prepared by SwedelsonGottlieb senior partner David Swedelson. If you have questions or comments, please direct them to David at dcs@sghoalaw.com.

September 22, 2010 marked the beginning of the Jewish holiday of Sukkot. This holiday starts on a different date between late September to late October each year and has agricultural orgins, celebrating the harvest. If it is Sukkot, we can be assured of getting calls asking us what to do about the Sukkahs that some homeowners have erected on their balconies or patios (or in some cases right in the common area). For those of you who don’t know what Sukkot entails, some Jews construct temporary outdoor dwellings, called Sukkahs, where they traditionally eat, sleep, and otherwise spend their time during this seven day holiday. Click here for examples of Sukkahs. The Sukkahs are typically small temporary wooden structures, but can be quite elaborate, incorporating various decorations such as hanging fruit and vegetables.

What do you do if a homeowner puts up a Sukkah on their exclusive use common area, or worse, on the common area that is not theirs to use exclusively, in violation of governing documents that contain prohibitions on exterior modifications without architectural committee approval? Despite our constant admonishments to uniformly and consistently enforce the governing documents, the association’s right to enforce its restrictions has to be weighed against the homeowners’ right to practice their religion.

Continue reading " The Owner Put a Sukkah Where? " »

An interesting trial court decision was reported in the Daily Journal, a newspaper for attorneys. The article dealt with a the trial judge’s decision in a lawsuit between two owners in a Newport Beach gated zero lot line community regarding a purported landscaping encroachment. A zero lot line refers to a type of home where one boundary wall of the structure is built right on the property line (rather then there being a wall between the two homes with a setback).

Follow this link to read the article/summary.

One neighbor claimed that the other neighbor’s shrubbery that grew along a 2.5 foot wall on their shared property line was interfering with their view. They also sought a declaration from the court that their neighbor would be responsible for future damage to the drainage system that may be caused by their landscaping. The plaintiff owner requested $100,000 in damages and injunctive relief (and a court order requiring that the conditions be eliminated).

Continue reading " Owners in Zero Lot Line View Protected Communities May Have No Reasonable Expectation of Privacy " »

On August 13, 2010, the Federal Housing Finance Agency (FHFA) issued a proposed regulation to ban the use of deed-based or covenant-based transfer fees. The proposal would prohibit Fannie Mae, Freddie Mac and all federal home loan banks from purchasing mortgages for properties in communities with deed-based transfer fees. While the target of the regulation appears to be private transfer fees that require a payment to a third party each time a property is sold, the proposed rule, as currently written, would include deed-based transfer fees used by many community associations. Click here for a recent Los Angeles Times article that addresses this issue.

A Private Transfer Fee is defined any fee or payment required at time of sale of a property by a deed or covenant restriction.

This new rule, if adopted, could have a significant impact on those communities that have private transfer fees in their governing documents.

Continue reading " FHFA Proposes Ban on Transfer Fees " »

Calemine v. Jared Court Homeowners Association, Inc.

In an unpublished opinion, the California Court of Appeals, relying on the Supreme Court’s decision in Lamden, upheld a trial court ruling that a condominium association, acting in good faith and in the best interests of the community, can decide not to take action to stop water from intruding or leaking into a unit due to construction defects in common areas.

Jared Court, an 18 unit townhouse style condominium association located in Woodland Hills, California, is made up of four buildings and common area that includes a tennis court, swimming pool, concrete walkways, front patios and mature landscaping. The CC&Rs require that the Association "maintain the portion of the project not occupied by the units [the common area], in good, clean, attractive and sanitary order and repair."

Continue reading " Association Does Not Have to Stop Water Intrusion Into Condominium Units " »

Lately, a number of our firm's clients have contacted us regarding disputes they are having with vendors or their management regarding termination of their relationships. One association was very dissatisfied with the laundry room service/equipment provider, and when they went to terminate that relationship, they received a letter from the laundry company's attorney advising that the contract had recently renewed for an additional five-year term. To make matters worse, there was no provision in the agreement for terminating the contract for cause.

Another client wanted to get out of their contract with their management company, wrote a letter of termination, and was then advised that the contract had renewed for another year (and the manager never told the board when the deadline was to terminate). And this was after the board had been asking the management company for a copy of their contract. The management company denied that it had any obligation to advise the association as to when the contract term ended or when or if there was a deadline for termination.

Continue reading " “Evergreen” Contract Provisions Set Contract Traps for Unwary Boards " »

Posted by David Swedelson

From time to time we hear from association clients that are in a dispute with owners over documents that the owner wants to inspect or copy. They often want copies of the attorney's billing statements. The problem is that most attorneys are descriptive as to the nature of the services provided, and these narratives include confidential attorney-client privileged communications and are not for distribution.

In response to an owner's request to review the association’s legal bills, it is appropriate for the Board to respond denying the request on the basis that the legal bills are subject to the attorney-client privilege, and that a member’s right to review association documents does not extend to documents subject to the privilege. Yes, the Civil Code does say that the owners are entitled to see the contract between the association and the attorney. But the retainer agreement is not a billing invoice. And the owner is entitled to documents showing what the attorney has been paid; but not the billing invoice.

Support for this position is found in the Court of Appeal decision in the case of Smith vs. Laguna Sur Villas Community Assn. (2000) 79 Cal.App.4th 641. In that case, the court discussed how, as a corporation, it is the association who is the client, not the individual members. The Court went on to deny homeowners their request to review the association’s attorney bills in that matter as the bills contained confidential information relating to the services being performed by the association’s legal counsel.

California Civil Code Section 1365.2 states, “Except as provided by the attorney-client privilege, the association may not withhold or redact information concerning the compensation paid to employees, vendors or contractors.” Civil Code Section 1365.2 specifically excludes documents which are subject to the attorney-client privilege from a member’s right of review. Attorney billing statements contain detailed descriptions of the work performed by the attorney. If they were revealed, such statements could be used against the association in any pending litigation or other matters. As the Laguna Sur Villas Community Assn. Court points out, unlike directors, residents owe no fiduciary duties to one another and may be willing to waive or breach the attorney-client privilege for reasons unrelated to the best interests of the association.

If you have comments, send them to David Swedelson at dcs@sghoalaw.com

In July, David C. Swedelson, Esq. was a speaker at the CACM expo, in a program entitled “Technology Horoscope”. Several attendees have requested copies of the article that David prepared for that presentation with the actual links to some of the new technology, applications and programs that David discussed at the expo. Follow this link for a copy of the article. David will continue to periodically provide new information on technology that can benefit those that serve on boards of directors or manage California condominium associations and planned developments.