HOA Law Blog

Posted by David C. Swedelson,
Partner, SwedelsonGottlieb; Community Association Legal Expert

With the proliferation of electric vehicles comes a new law that limits and restricts California community associations' ability to prohibit an owner from installing their own electric charging station. On July 25, Governor Brown signed Senate Bill 209, which adds new Civil Code Section 1353.9. The new law takes effect January 1, 2012.

New Civil Code Section 1353.9 will prohibit California condominium and other community associations from unreasonably restricting the installation of electric vehicle charging stations. Homeowners who place charging stations in the common areas will be responsible for costs associated with maintaining and repairing the station, as well as costs for damage to common areas and adjacent units resulting from installation and maintenance of the station. The new law will impose other responsibilities on the homeowner, including maintaining a liability insurance coverage of $1,000,000 that names the association as an additional insured.

Unfortunately, the new law allows individual owners to use or occupy common areas, contrary to existing statutes and case law. In his signing message, Governor Brown stated that the author of the bill plans to introduce legislation that protects the right of common interest developments to establish reasonable rules for any use of common areas for charging stations. Governor Brown recognized this issue in his signing message:

Continue reading " Governor Signs Senate Bill 209 Dealing WIth Electric Charging Stations " »

Blog posting by David Swedelson, California HOA and Condo Lawyer and Legal Expert

Interesting article and perspective regarding the Federal Housing Administration’s (FHA’s) new guidelines for condominium loan offers from fellow community association attorney Stephan Marcus (Massachusetts).

Steve notes that "the FHA published the first iteration of this guidance in June 2009, with little, if any, input from the community association industry. The FHA’s new Guidelines, unveiled in late June 2011, indicate that FHA officials listened to the concerns expressed by the Community Associations Institute (CAI) and others, and responded to at least some of them. Apparently CAI is challenging the latest guidelines arguing that FHA violated both the Administrative Procedures Act and its own rule-making procedures by failing to consult affected industries and interest groups."

The new FHA Guidelines are available at this link.

Steve states that although improved in some areas, the revised guidelines are still problematic and believes that in some cases, they are even more problematic than before.

Continue reading " FHA’s Revised Condominium Guidance Solves Some Problems But Creates Many More " »

By David Swedelson, California Condo and HOA Legal Expert and Community Association Attorney

I came across an interesting article from a law firm in Florida (by attorney Lisa Magill with Becker & Poliakoff) that addresses the fact that after a bank forecloses, many boards are writing off the debt without considering all of the association’s collection options.

Yes, it is true that trying to collect from some delinquent owners may be a waste of time. But a board should be cautious in making that assumption without knowing if the homeowner has or does not have money or other assets. Boards should consider evaluating collection options.

Continue reading " The Lender Foreclosed and The Owner Has Not Paid; Is Your Association Leaving Money on the Table?—The New Community Association Paradigm " »

By David Swedelson, Community Association Attorney and Partner at SwedelsonGottlieb

The Davis-Stirling Common Interest Development Act is the common name of the portion of the California Civil Code beginning with section 1350, which governs condominium, cooperative, and planned unit development communities in California. It was enacted in 1985 by the California State Legislature and has been amended over 45 times.

There are many homeowner associations that look like any other and collect fees and assessments, but in fact are not subject to the Davis-Stirling Act based on the holdings in Mount Olympus Property Owners Ass'n v. Shpirt, 59 Cal. App. 4th 885 (Cal. App. 2d Dist. 1997) and Comm. to Save the Beverly Highlands Homes Ass'n v. Beverly Highlands Homes Ass'n, 92 Cal. App. 4th 1247 (Cal. App. 2d Dist. 2001).

In Mount Olympus, the court held that in order for a common interest development to exist and the Davis-Stirling Act to apply, “there must exist a common area owned either by the association or by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area.” The court did not interpret the Davis-Stirling Act to require that the common area be of a certain size or be used by the association in a particular manner.

In Beverly Highlands, the court used a similar analysis, and because the association did not own any land whatsoever, and because there was no land over which the owners had mutual or reciprocal easement rights appurtenant to their separate interests, it held that a common interest development did not exist and the Davis-Stirling Act therefore did not apply.

The courts in both Mount Olympus and Beverly Highlands held that the statutory common area requirement for a common interest development is met when the association owns a portion of land as common area.

So, if your association does not have nor own any common area, and the areas that the association does maintain are owned exclusively by the owners and no other owner has an easement to use that property, then it is very possible that your association is not subject to nor required to comply with the Davis-Stirling Act. If you are unsure, the board should consider having this issue analyzed by an attorney well versed in this area of the law.

David Swedelson is a California condo and HOA legal expert, and he can be reached via email at: dcs@sghoalaw.com.

The following is excerpted and edited by David Swedelson from an article prepared by Jan Frankel Schau Mediator/Arbitrator/Attorney. Jan was an associate at SwedelsonGottlieb several years ago.

How many times have you been in a meeting with the board and a homeowner regarding the owner's violation of the rules, CC&Rs or addressing damage they have caused to the common area? Many, I bet. And how many times have you cringed because neither the board nor the owner could get to closure on a deal, a settlement of the dispute. Everyone danced around the issues, but no one knew how to close a deal. Many people educated in negotiation tactics or skills have some tools they use to make a deal. Jan Schau analogizes to the TV show, “Pawn Stars.”

She says that she hesitates to admit it, but she has learned a thing or two about negotiation from the TV show, "Pawn Stars". She goes on to state that in this show (which I myself have enjoyed viewing), the owners of a Las Vegas Pawn Shop negotiate face to face to purchase used and unwanted "treasures" that have an unknown or uncertain value. Invariably, the "final offer" is accompanied by a smile, an extended hand and an expectation that the seller will accept that offer, even though it doesn't meet his last demand. The owners of the pawn shop are adept at making every seller feel great about selling their junk/treasures and getting a great deal in exchange.

Here's how it works in the context of a board and owner at a community association:

Continue reading " THE "HANDSHAKE" CLOSE Or How To Get The Owner To Take The Deal " »

By David Swedelson, California Condo and HOA Attorney, Senior Partner SwedelsonGottlieb

All too often we are called in to deal with a dispute over a contract that the association entered into with a contractor or vendor. And I am often surprised to learn that the board and management really do not understand what a binding contract is (and what it is not).
What needs to be understood is that the foundation of every legal transaction is the document known as a contract.

Continue reading " What Exactly Is A Binding Contract? " »

Is your association facing conflict because your governing documents have provisions which are in conflict with the Civil Code? Is the board and management having debates with homeowners over ambiguous provisions? Maybe your association needs to consider a restatement, a complete rewriting of your association's CC&Rs and bylaws. This was the subject of a recent article written by SwedelsonGottlieb associate Alex Noland that was published in the CACM's Law Journal.

In his article, Alex addresses why community associations should consider restating their governing documents and the procedure for obtaining owner approval. He provides some practical advice on how to get the owners to vote on the proposed amendments and lender approval, if necessary. Alex's article is based on his and the firms extensive experience having amended and restated CC&Rs and bylaws for hundreds of California community associations through the firm's Amend program. Follow this link to read Alex's article, and if you want more information regarding the Amend program, contact Alex Noland at an@sghoalaw.com or Mark Petrie at mark@sghoalaw.com. Or call them at 800.372.2207.