HOA Law Blog

All of the attorneys at SwedelsonGottlieb will be attending the 2012 Community Associations Institute Law Seminar in Palm Springs. The Law Seminar provides a unique learning opportunity to discuss emerging trends and legislative issues important to the practice of community association law—as well as excellent opportunities for professional networking.

And when they get back, they will be blogging about what they have learned. So be sure to visit hoalawblog.com for blog postings on new law, emerging trends and what is going on nationally and in California in community association law.

Once again, the Orange County Regional Chapter of the Community Associations Institute (CAI) has recognized the contributions of several SwedelsonGottlieb attorneys to the community association industry in Orange County with nominations for awards in three categories:

Author of the Year (David Swedelson, Esq., nominee)
Speaker of the Year (Sandra Gottlieb, Esq., nominee)
Committee of the Year (Alex Noland, Esq., as Co-Chair of the Programs Committee)

We are honored that our attorneys are recognized with these nominations, and we look forward to the big celebration recognizing the outstanding authors, speakers, committees and other volunteers in the Chapter. The Orange County Excellence in Community (OCEC) awards and wine dinner is Friday, February 3rd at Disney's Grand Californian Hotel & Spa. The registration fee will increase on this Friday, so register soon.

Did you know that you can find the CAI-OCRC chapter on Facebook?

Blog posting by SwedelsonGottlieb Senior Partner David Swedelson, Condo Lawyer and HOA Attorney

We have had to deal with our share of unauthorized playhouses in the past. And we have dealt with therapy pets in the past. But a therapy playhouse? Really!? As reported in Community Association Institute’s FastTracks email newsletter, a Lexington, Kentucky family’s legal battle with their homeowner’s association over the right to keep their disabled son’s “therapy playhouse” which was not approved by the association has “caused quite the stir, and is heating up as Kentucky’s legislature and a non-profit advocacy group get involved with the dispute.”

Continue reading " Therapy Playhouse Creates Controversy at HOA " »

The following is reposted from the Community Association Institute (CAI) - Bay Area & Central CA Chapter's website. Follow this link to view the event on their site, and scroll down to the bottom of their page to find the "Register" link.

Please join with Community Associations Institute Bay Area and Central California Chapter at their Educational Forum on Friday, February 10, 2012 at Dolce Hayes Mansion. Our program will be "Get the Loan you Want and Need - Preparing Your Association for a Loan" presented by Geri Kennedy, CCAM of First Bank, Mary Peterson of Association Lien Services and Alex Noland, Esq. of SwedelsonGottlieb.

Planning early is critical if the association is considering the possibility of a loan. This presentation will explore the legal issues related to association loans, what the bank will be looking for and how your delinquency collections can help get you the loan you want and need approved. Help avoid pitfalls that can cause your loan application to be declined.

Senior Partner David Swedelson will be a speaker on legal issues at the Los Angeles Chapter of Community Associations Institute’s upcoming HOA Board Member Orientation, Essentials of Community Association Leadership to be held this Saturday, January 21st. If you're new to community association governance, this 8 hour Saturday orientation for association leaders is a must. This course will be given on Saturday, January 21st in Redondo Beach. For more information, follow this link.

By Sandra L. Gottlieb, Esq., Senior Partner, SwedelsonGottlieb

On July 11, 2011, the City of Pasadena passed a “no-smoking” ordinance for multi-family homes, defined as two or more units, applicable to both those now existing and to be built, effective January 1, 2012. The ordinance provides that it will be unlawful to smoke in any common area (broadly defined in the statute to include all areas other than a unit), patio, balcony or inside a unit within any multi-family building, and yes, this applies to condominiums.

As of January 1, 2012, owners and/or their community managers must post “No Smoking” signs, in capital letters, not less than one inch in height, on a contrasting background or, as an alternative, the association may post the international “no smoking” symbol instead of the written words, in the common areas of the association’s building(s) at first floor entrances and exits, lobbies, restrooms and elevators. The international “no smoking” symbol consists of a picture of a burning cigarette enclosed in a red circle with a red bar across it:

Further, effective January 1, 2012, all leases, rental agreements and purchase agreements (new or renewed, and this will apply to condominium associations and planned developments) must refer to the prohibition language in the ordinance and must provide a copy of the ordinance to the person or entity with whom they are contracting.

The actual enforcement of this ordinance will commence on July 1, 2013 and prohibit smokers from not only smoking on association common areas, but also within their condominium, which includes townhomes and, as it applies to non-association properties as well, rental and owned apartments. The ordinance will be enforced by the City, not by the associations.

If you are selling a home (unit condominium, townhome, etc.), you must include a reference to the “no smoking” ordinance in your purchase agreement, as well as include a copy of the ordinance. (Ordinance Section 8.78.080 Posting of Signs, and Section 8.78.085 Reduction of Drifting Tobacco Smoke in Multi-Unit Housing). Follow this link to view these ordinances.

As a final comment, the last sentence of the ordinance provides that “an owner, operator, manager, landlord, homeowners’ association or other person having control of a multi-unit housing unit shall post signs as required by Section 8.78.080; however, said persons may, but are not hereby required, to assist with enforcing the provisions of this section and shall not be deemed in violation of this section by failure to assist in its enforcement.” Fortunately, this clarifies that the City is not expecting homeowners associations to enforce the ordinance. It is imperative that Boards of Directors understand the extent and limits of their associations' obligations and not take on the enforcement obligations of the City.

Sandra Gottlieb can be contacted at slg@sghoalaw.com.

Prepared by the Community Association Attorneys at SwedelsonGottlieb

As they do almost every year, the California Legislature has yet again changed the Davis-Stirling Act (there have been approximately 50 amendments to the Act since its inception in 1985). We have summarized the most significant changes which impact how boards will hold meetings including executive session meetings, how boards communicate with one another, fees at escrow, electric charging stations, and rental restrictions. We will be preparing additional articles on these changes and posting them to www.hoalawblog.com. Follow this link for our summary of new legislation.

By David C. Swedelson, Esq., Senior Partner, SwedelsonGottlieb

Here is the issue: A board adopts the annual budget and notifies the owners that assessments will increase from last year by 10%. After the beginning of the association’s fiscal year, and months later, the board realizes that expenses are greater than anticipated and wants to again increase the assessments, this time by another 10% (for a total of a 20% annual increase). Some attorneys, managers and board members believe that the board has this power; others (including this writer) disagree based on the language of the Civil Code, the intent of the legislature, and common sense. Owners are entitled to know at the beginning of the fiscal year what their association’s assessments will be. The board has a fiduciary obligation to determine what the assessments will be for that fiscal year and has a right to use the remedy provided in the Civil Code if expenses are greater than anticipated. Otherwise, the legislature would not have imposed a sanction for a board’s failure to timely distribute the new fiscal year’s budget, and a board could simply send out whatever they have and finalize the budget later.

Continue reading " No, Boards Can't Increase the Rate of Assessments Mid-Fiscal Year " »

By David Swedelson, Senior Partner at SwedelsonGottlieb; Head of Firm Litigation Team; Condo Lawyer and HOA Attorney

As you have likely seen in the news, the “Great Recession” is still impacting us in ways we could not have imagined a year or two ago. Recently we have seen a number of news stories chronicling the plight of the state's trial courts that are faced with unprecedented budget cuts, resulting in staff reductions and layoffs, and as a consequence long lines at the court house, stacks of unprocessed paperwork piling up in court clerks' offices, and delays in getting hearing and trial dates. Justice will be delayed because there are just not enough staff persons at the courthouses to get the work done as quickly as we would like.

As reported in the Daily Journal, “Saying it had no other alternative for absorbing $350 million in budget cuts to the branch, the Judicial Council voted in July to slash trial court funding 6.8 percent. It remains to be seen how the next fiscal's budget will shake out, but even courts that fared OK this year are bracing for the worst.”

Continue reading " Great Recession Impacts Court System; Expect Delays " »

By Sandra L. Gottlieb, Esq., SwedelsonGottlieb Managing Partner; Community Association Legal Counsel

In 2002, the California Law Revision Commission (CLRC) was charged by then-Governor Gray Davis with clarifying ambiguities within the Davis-Stirling Act. (Civil Code Sections 1350-1378) to make it more "user-friendly" for homeowners and board members alike. After working fro many years with stakeholders, including a working group of attorneys, community managers and other industry professionals, the CLRC is behind the introduction of AB 805 (Torres), a two-year bill which must first be passed by both the Senate and Assembly and ultimately signed by the governor into law.

At this point, it is highly likely that AB 805 will make its way through both houses in 2012, with an effective date of either January 2013 or (the more likely date of) January 2014. Attorneys and managers alike will need continuing education to learn the new code provisions, sections and numbering.

Continue reading " Revamping of Davis-Stirling Act Slated for 2013 or 2014 " »

(a) The following provisions do not apply to a common interest development that is limited to industrial or commercial uses by zoning or by a declaration of covenants, conditions, and restrictions that has been recorded in the official records of each
county in which the common interest development is located:

(1) Section 1356.
(2) Article 4 (commencing with Section 1357.100) of Chapter 2 of Title 6 of Part 4 of Division 2.
(3) Section 1360.2.
(4) Subdivision (b) of Section 1363.
(5) Section 1365.
(6) Section 1365.5.
(7) Subdivision (b) of Section 1366.
(8) Section 1366.1.
(9) Section 1368.
(10) Section 1378.

(b) The Legislature finds that the provisions listed in subdivision (a) are appropriate to protect purchasers in residential common interest developments, however, the provisions may not be necessary to protect purchasers in commercial or industrial developments since the application of those provisions could result in unnecessary burdens and costs for these types of developments.

(a) The owner of a separate interest, other than an owner subject to the requirements of Section 11018.6 of the Business and Professions Code, shall, as soon as practicable before transfer of title to the separate interest or execution of a real property sales contract therefor, as defined in Section 2985, provide the following to the prospective purchaser:
(1) A copy of the governing documents of the common interest development, including any operating rules, and including a copy of the association's articles of incorporation, or, if not incorporated, a statement in writing from an authorized representative of the association that the association is not incorporated.
(2) If there is a restriction in the governing documents limiting the occupancy, residency, or use of a separate interest on the basis of age in a manner different from that provided in Section 51.3, a statement that the restriction is only enforceable to the extent permitted by Section 51.3 and a statement specifying the applicable provisions of Section 51.3.
(3) A copy of the most recent documents distributed pursuant to Section 1365.
(4) A true statement in writing obtained from an authorized representative of the association as to the amount of the association's current regular and special assessments and fees, any assessments levied upon the owner's interest in the common interest development that are unpaid on the date of the statement, and any monetary fines or penalties levied upon the owner's interest and unpaid on the date of the statement. The statement obtained from an authorized representative shall also include true information on late charges, interest, and costs of collection which, as of the date of the statement, are or may be made a lien upon the owner's interest in a common interest development pursuant to Section 1367 or 1367.1.
(5) A copy or a summary of any notice previously sent to the owner pursuant to subdivision (h) of Section 1363 that sets forth any alleged violation of the governing documents that remains unresolved at the time of the request. The notice shall not be deemed a waiver of the association's right to enforce the governing documents against the owner or the prospective purchaser of the separate interest with respect to any violation. This paragraph shall not be construed to require an association to inspect an owner's separate interest.
(6) A copy of the preliminary list of defects provided to each member of the association pursuant to Section 1375, unless the association and the builder subsequently enter into a settlement agreement or otherwise resolve the matter and the association complies with Section 1375.1. Disclosure of the preliminary list of defects pursuant to this paragraph does not waive any privilege attached to the document. The preliminary list of defects shall also include a statement that a final determination as to whether the list of defects is accurate and complete has not been made.
(7) A copy of the latest information provided for in Section 1375.1.
(8) Any change in the association's current regular and special assessments and fees which have been approved by the association's board of directors, but have not become due and payable as of the date disclosure is provided pursuant to this subdivision.
(9) If there is a provision in the governing documents that prohibits the rental or leasing of any of the separate interests in the common interest development to a renter, lessee or tenant, a statement describing the prohibition and its applicability.
(10) If requested by the prospective purchaser, a copy of the minutes of the meetings, excluding meetings held in executive session, of the association's board of directors, conducted over the previous 12 months, that were approved by the association's board of directors.

(b) Upon written request, the association shall, within 10 days of the mailing or delivery of the request, provide the owner of a separate interest, or any other recipient authorized by the owner, with a copy of the requested items specified in paragraphs (1) to (10), inclusive, of subdivision (a). Upon receipt of a written request, the association shall provide, on the form described in Section 1368.2, a written or electronic estimate of the fees that will be assessed for providing the requested documents. The documents required to be made available pursuant to this section may be maintained in electronic form, and may be posted on the association's Internet Web site. Requesting parties shall have the option of receiving the documents by electronic transmission if the association maintains the documents in electronic form. The association may collect a reasonable fee based upon the association's actual cost for the procurement, preparation, reproduction, and delivery of the documents requested pursuant to the provisions of this section.
(2) No additional fees may be charged by the association for the electronic delivery of the documents requested.
(3) (A) A cancellation fee for documents specified in subdivision (a) shall not be collected if either of the following applies:
(i) The request was canceled in writing by the same party that placed the order and work had not yet been performed on the order.
(ii) The request was canceled in writing and any work that had been performed on the order was compensated.
(B) The association shall refund all fees collected pursuant to paragraph (1) if the request was canceled in writing and work had not yet been performed on the order.
(C) If the request was canceled in writing, the association shall refund the share of fees collected pursuant to paragraph (1) that represents the portion of the work not performed on the order.
(4) Fees for any documents required by this section shall be distinguished from other fees, fines, or assessments billed as part of the transfer or sales transaction. Delivery of the documents required by this section shall not be withheld for any reason nor subject to any condition except the payment of the fee allowed pursuant to paragraph (1).
(5) An association may contract with any person or entity to facilitate compliance with the requirements of this subdivision on behalf of the association.
(6) The association shall also provide a recipient authorized by the owner of a separate interest with a copy of the completed form specified in Section 1368.2 at the time the required documents are delivered.

(c) (1) Except as provided in paragraph (2), neither an association nor a community service organization or similar entity may impose or collect any assessment, penalty, or fee in connection with a transfer of title or any other interest except for the following:
(A) An amount not to exceed the association's actual costs to change its records.
(B) An amount authorized by subdivision (b).
(2) The prohibition in paragraph (1) does not apply to a community service organization or similar entity, or to a nonprofit entity that provides services to a common interest development under a declaration of trust, that is described in subparagraph (A) or (B):
(A) The community service organization or similar entity satisfies both of the following requirements:
(i) The community service organization or similar entity was established prior to February 20, 2003.
(ii) The community service organization or similar entity exists and operates, in whole or in part, to fund or perform environmental mitigation or to restore or maintain wetlands or native habitat, as required by the state or local government as an express written condition of development.
(B) The community service organization or similar entity, or a nonprofit entity that provides services to a common interest development under a declaration of trust, satisfies all of the following requirements:
(i) The community service organization or similar entity is not an organization or entity described in subparagraph (A).
(ii) The community service organization or similar entity was established and received a transfer fee prior to January 1, 2004.
(iii) On and after January 1, 2006, the organization or entity offers a purchaser the following payment options for the fee or charge it collects at time of transfer:
(I) Paying the fee or charge at the time of transfer.
(II) Paying the fee or charge pursuant to an installment payment plan for a period of not less than seven years. If the purchaser elects to pay the fee or charge in installment payments, the community service organization or similar entity may also collect additional amounts that do not exceed the actual costs for billing and financing on the amount owed. If the purchaser sells the separate interest before the end of the installment payment plan period, he or she shall pay the remaining balance prior to transfer.
(3) For the purposes of this subdivision, a "community service organization or similar entity" means a nonprofit entity, other than an association, that is organized to provide services to residents of the common interest development or to the public in addition to the residents, to the extent community common areas or facilities are available to the public. A "community service organization or similar entity" does not include an entity that has been organized solely to raise moneys and contribute to other nonprofit organizations that are qualified as tax exempt under Section 501(c)(3) of the Internal Revenue Code and that provide housing or housing assistance.

(d) Any person or entity who willfully violates this section is liable to the purchaser of a separate interest that is subject to this section for actual damages occasioned thereby and, in addition, shall pay a civil penalty in an amount not to exceed five hundred dollars ($500). In an action to enforce this liability, the prevailing party shall be awarded reasonable attorneys' fees.

(e) Nothing in this section affects the validity of title to real property transferred in violation of this section.

(f) In addition to the requirements of this section, an owner transferring title to a separate interest shall comply with applicable requirements of Sections 1133 and 1134.

(g) For the purposes of this section, a person who acts as a community association manager is an agent, as defined in Section 2297, of the association.

1368.2. The form for billing disclosures required by Section 1368 shall be in substantially the following form and in at least 10-point type:

Follow this link to download the required form.

1360.2. (a) An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to his or her separate interest.
(b) Notwithstanding the provisions of this section, an owner of a separate interest in a common interest development may expressly consent to be subject to a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in the common interest development to a renter, lessee, or tenant.
(c) For purposes of this section, the right to rent or lease the separate interest of an owner shall not be deemed to have terminated if the transfer by the owner of all or part of the separate interest meets at least one of the following conditions:
(1) Pursuant to Section 62 or 480.3 of the Revenue and Taxation Code, the transfer is exempt, for purposes of reassessment by the county tax assessor.
(2) Pursuant to subdivision (b) of, solely with respect to probate transfers, or subdivision (e), (f), or (g) of, Section 1102.2, the transfer is exempt from the requirements to prepare and deliver a Real Estate Transfer Disclosure Statement, as set forth in Section 1102.6.
(d) Prior to renting or leasing his or her separate interest as provided by this section, an owner shall provide the association verification of the date the owner acquired title to the separate interest and the name and contact information of the prospective
tenant or the prospective tenant's representative.
(e) Nothing in this section shall be deemed to revise, alter, or otherwise affect the voting process by which a common interest development adopts or amends its governing documents.
(f) This section shall apply only to a provision in a governing document or a provision in an amendment to a governing document that becomes effective on or after January 1, 2012.

• Yan Sui v. Price (2011) 196 Cal. App. 4th 933

- A California Court of Appeal upheld a board’s adoption of a rule prohibiting inoperable vehicles.
- Plaintiff alleged discrimination on the basis that he was the only homeowner that had an inoperable vehicle.
- Plaintiff alleged the rule was not enforceable because it was not recorded with the county recorder.
- The Board properly adopted the rule pursuant to Section 1357.100 et seq., allowing 30 days for review and comment by the members before adopting the rule.
- No members sought a special meeting to reverse the rule change.
- The court found that the Plaintiff’s discrimination claim did not have merit, as the rule applied to all homeowners. Additionally, the court determined that the rule was reasonable, and the rule did not have to be recorded with the county recorder’s office.

• Schuman v. Ignatin (2010) 191 Cal.App.4th 255

- This case involved an architectural dispute between neighbors over obstruction of views from new construction.
- The association’s CC&Rs contained a restriction against obstruction of scenic views from other lots.
- An owner who wanted to perform new construction that would obstruct several views claimed that the association’s CC&Rs had expired and were no longer enforceable.
- The CC&Rs provided they would remain enforceable until January 1999; an extension of the CC&Rs was recorded in December 1998.
- The owner who wanted to build claimed the 1998 amendment was ineffective because it was not signed by all lot owners.
- The court relied on the appellate case Costa Serena Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Cal.App.4th 1175 and found that any challenge to the validity of an amendment that occurs more than four years after the amendment was recorded is barred by the statute of limitations. The owner who wanted to build did not challenge the amendment until almost ten years after the amendment was recorded.
 
• Ferwerda v. Bordon (2011) 193 Cal.App.4th 1178

- An owner attempted to build a home on a vacant lot in violation of a manual of rules adopted by an association committee.
- Although the association’s CC&Rs authorized the committee to adopt and enforce the manual, and the manual included a provision for the association to recover attorneys’ fees in litigation, no provision was included in the CC&Rs for recovery of attorneys’ fees.
- Even though the owner was found to have violated the rule, the appellate court found that the manual’s provision for attorneys’ fees exceeded the scope of restrictions set forth in the CC&Rs, and the court did not award attorneys’ fees to the association.

(a) To assist with the identification of common interest developments, each association, whether incorporated or unincorporated, shall submit to the Secretary of State, on a form and for a fee not to exceed thirty dollars ($30) that the Secretary of State shall prescribe, the following information concerning the association and the development that it manages:
(1) A statement that the association is formed to manage a common interest development under the Davis-Stirling Common Interest Development Act.
(2) The name of the association.
(3) The street address of the business or corporate office of the association, if any.
(4) The street address of the association's onsite office, if different from the street address of the business or corporate office, or if there is no onsite office, the street address of the responsible officer or managing agent of the association.
(5) The name, address, and either the daytime telephone number or e-mail address of the president of the association, other than the address, telephone number, or e-mail address of the association's onsite office or managing agent of the association.
(6) The name, street address, and daytime telephone number of the association's managing agent, if any.
(7) The county, and if in an incorporated area, the city in which the development is physically located. If the boundaries of the development are physically located in more than one county, each of the counties in which it is located.
(8) If the development is in an unincorporated area, the city closest in proximity to the development.
(9) The front street and nearest cross street of the physical location of the development.
(10) The type of common interest development, as defined in subdivision (c) of Section 1351, managed by the association.
(11) The number of separate interests, as defined in subdivision (l) of Section 1351, in the development.

(b) The association shall submit the information required by this section as follows:
(1) By incorporated associations, within 90 days after the filing of its original articles of incorporation, and thereafter at the time the association files its biennial statement of principal business activity with the Secretary of State pursuant to Section 8210 of the Corporations Code.
(2) By unincorporated associations, in July of 2003, and in that same month biennially thereafter. Upon changing its status to that of a corporation, the association shall comply with the filing deadlines in paragraph (1).

(c) The association shall notify the Secretary of State of any change in the street address of the association's onsite office or of the responsible officer or managing agent of the association in the form and for a fee prescribed by the Secretary of State, within 60 days of the change.

(d) On and after January 1, 2006, the penalty for an incorporated association's noncompliance with the initial or biennial filing requirements of this section shall be suspension of the association's rights, privileges, and powers as a corporation and monetary penalties, to the same extent and in the same manner as suspension and monetary penalties imposed pursuant to Section 8810 of the Corporations Code.

(e) The statement required by this section may be filed, notwithstanding suspension of the corporate powers, rights, and privileges under this section or under provisions of the Revenue and Taxation Code. Upon the filing of a statement under this section by a corporation that has suffered suspension under this section, the Secretary of State shall certify that fact to the Franchise Tax Board and the corporation may thereupon be relieved from suspension, unless the corporation is held in suspension by the Franchise Tax Board by reason of Section 23301, 23301.5, or 23775 of the Revenue and Taxation Code.

(f) The Secretary of State shall make the information submitted pursuant to paragraph (5) of subdivision (a) available only for governmental purposes and only to Members of the Legislature and the Business, Transportation and Housing Agency, upon written request. All other information submitted pursuant to this section shall be subject to public inspection pursuant to the California Public Records Act, Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code. The information submitted pursuant to this section shall be made available for governmental or public inspection, as the case may be, on or before July 1, 2004, and thereafter.

(g) Whenever any form is filed pursuant to this section, it supersedes any previously filed form.

(h) The Secretary of State may destroy or otherwise dispose of any form filed pursuant to this section after it has been superseded by the filing of a new form.

(a) The articles of incorporation of a common interest development association filed with the Secretary of State shall include a statement, which shall be in addition to the statement of purposes of the corporation, that does all of the following:
(1) Identifies the corporation as an association formed to manage a common interest development under the Davis-Stirling Common Interest Development Act.
(2) States the business or corporate office of the association, if any, and, if the office is not on the site of the common interest development, states the front street and nearest cross street for the physical location of the common interest development.
(3) States the name and address of the association's managing agent, as defined in Section 1363.1, if any.

(b) The statement filed by an incorporated association with the Secretary of State pursuant to Section 8210 of the Corporations Code shall also contain a statement identifying the corporation as an association formed to manage a common interest development association under the Davis-Stirling Common Interest Development Act.

1363.07. (a) After an association acquires fee title to, or any
easement right over, a common area, unless the association's
governing documents specify a different percentage, the affirmative
vote of members owning at least 67 percent of the separate interests
in the common interest development shall be required before the board
of directors may grant exclusive use of any portion of that common
area to any member, except for any of the following:
(1) A reconveyance of all or any portion of that common area to
the subdivider to enable the continuation of development that is in
substantial conformance with a detailed plan of phased development
submitted to the Real Estate Commissioner with the application for a
public report.
(2) Any grant of exclusive use that is in substantial conformance
with a detailed plan of phased development submitted to the Real
Estate Commissioner with the application for a public report or in
accordance with the governing documents approved by the Real Estate
Commissioner.
(3) Any grant of exclusive use that is for any of the following
reasons:
(A) To eliminate or correct engineering errors in documents
recorded with the county recorder or on file with a public agency or
utility company.
(B) To eliminate or correct encroachments due to errors in
construction of any improvements.
(C) To permit changes in the plan of development submitted to the
Real Estate Commissioner in circumstances where the changes are the
result of topography, obstruction, hardship, aesthetic
considerations, or environmental conditions.
(D) To fulfill the requirement of a public agency.
(E) To transfer the burden of management and maintenance of any
common area that is generally inaccessible and not of general use to
the membership at large of the association.
(F) Any grant in connection with an expressly zoned industrial or
commercial development, or any grant within a subdivision of the type
defined in Section 1373.
(G) (i) To install and use an electric vehicle charging station in
an owner's garage or a designated parking space that meets the
requirements of Section 1353.9, where the installation or use of the
charging station requires reasonable access through, or across, the
common area for utility lines or meters.
(ii) To install and use an electric vehicle charging station
through a license granted by an association under Section 1353.9.
(b) Any measure placed before the members requesting that the
board of directors grant exclusive use of any portion of the common
area shall specify whether the association will receive any monetary
consideration for the grant and whether the association or the
transferee will be responsible for providing any insurance coverage
for exclusive use of the common area.

(a) This section shall be known and may be cited as the Common Interest Development Open Meeting Act.

(b) Any member of the association may attend meetings of the board of directors of the association, except when the board adjourns to executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member's request, regarding the member's payment of assessments, as specified in Section 1367 or 1367.1. The board of directors of the association shall meet in executive session, if requested by a member who may be subject to a fine, penalty, or other form of discipline, and the member shall be entitled to attend the executive session. As specified in paragraph (2) of subdivision (k), a member of the association shall be entitled to attend a teleconference meeting or the portion of the teleconference meeting that is open to members, and that meeting or portion of the meeting shall be audible to the members in a location specified in the notice of the meeting.

(c) Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership.

(d) The minutes, minutes proposed for adoption that are marked to indicate draft status, or a summary of the minutes, of any meeting of the board of directors of an association, other than an executive session, shall be available to members within 30 days of the meeting. The minutes, proposed minutes, or summary minutes shall be distributed to any member of the association upon request and upon reimbursement of the association's costs for making that distribution.

(e) Members of the association shall be notified in writing at the time that the pro forma budget required in Section 1365 is distributed, or at the time of any general mailing to the entire membership of the association, of their right to have copies of the minutes of meetings of the board of directors, and how and where those minutes may be obtained.

(f) Unless the time and place of meeting is fixed by the bylaws, or unless the bylaws provide for a longer period of notice, members shall be given notice of the time and place of a meeting as defined in subdivision (k), except for an emergency meeting or a meeting that will be held solely in executive session, at least four days prior to the meeting. Except for an emergency meeting, members shall be given notice of the time and place of a meeting that will be held solely in executive session at least two days prior to the meeting. Notice shall be given by posting the notice in a prominent place or places within the common area and by mail to any owner who had requested notification of board meetings by mail, at the address requested by the owner. Notice may also be given, by mail or delivery of the notice to each unit in the development or by newsletter or similar means of communication, or, with the consent of the member, by electronic means. The notice shall contain the agenda for the meeting.

(g) An emergency meeting of the board may be called by the president of the association, or by any two members of the governing body other than the president, if there are circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice as required by this section.

(h) The board of directors of the association shall permit any member of the association to speak at any meeting of the association or the board of directors, except for meetings of the board held in executive session. A reasonable time limit for all members of the association to speak to the board of directors or before a meeting of the association shall be established by the board of directors.

(i) (1) Except as described in paragraphs (2) to (4), inclusive, the board of directors of the association may not discuss or take action on any item at a nonemergency meeting unless the item was placed on the agenda included in the notice that was posted and distributed pursuant to subdivision (f). This subdivision does not prohibit a resident who is not a member of the board from speaking on issues not on the agenda.
(2) Notwithstanding paragraph (1), a member of the board of directors, a managing agent or other agent of the board of directors, or a member of the staff of the board of directors, may do any of the following:
(A) Briefly respond to statements made or questions posed by a person speaking at a meeting as described in subdivision (h).
(B) Ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities, whether in response to questions posed by a member of the association or based upon his or her own initiative.
(3) Notwithstanding paragraph (1), the board of directors or a member of the board of directors, subject to rules or procedures of the board of directors, may do any of the following:
(A) Provide a reference to, or provide other resources for factual information to, its managing agent or other agents or staff.
(B) Request its managing agent or other agents or staff to report back to the board of directors at a subsequent meeting concerning any matter, or take action to direct its managing agent or other agents or staff to place a matter of business on a future agenda.
(C) Direct its managing agent or other agents or staff to perform administrative tasks that are necessary to carry out this subdivision.
(4) (A) Notwithstanding paragraph (1), the board of directors may take action on any item of business not appearing on the agenda posted and distributed pursuant to subdivision (f) under any of the following conditions:
(i) Upon a determination made by a majority of the board of directors present at the meeting that an emergency situation exists. An emergency situation exists if there are circumstances that could not have been reasonably foreseen by the board, that require immediate attention and possible action by the board, and that, of necessity, make it impracticable to provide notice.
(ii) Upon a determination made by the board by a vote of two-thirds of the members present at the meeting, or, if less than two-thirds of total membership of the board is present at the meeting, by a unanimous vote of the members present, that there is a need to take immediate action and that the need for action came to the attention of the board after the agenda was posted and distributed pursuant to subdivision (f).
(iii) The item appeared on an agenda that was posted and distributed pursuant to subdivision (f) for a prior meeting of the board of directors that occurred not more than 30 calendar days before the date that action is taken on the item and, at the prior meeting, action on the item was continued to the meeting at which the action is taken.
(B) Before discussing any item pursuant to this paragraph, the board of directors shall openly identify the item to the members in attendance at the meeting.
(j) (1) The board of directors shall not take action on any item of business outside of a meeting.
(2) (A) Notwithstanding Section 7211 of the Corporations Code, the board of directors shall not conduct a meeting via a series of electronic transmissions, including, but not limited to, electronic mail, except as specified in subparagraph (B).
(B) Electronic transmissions may be used as a method of conducting an emergency meeting if all members of the board, individually or collectively, consent in writing to that action, and if the written consent or consents are filed with the minutes of the meeting of the board. Written consent to conduct an emergency meeting may be transmitted electronically.
(k) As used in this section:
(1) "Item of business" means any action within the authority of the board, except those actions that the board has validly delegated to any other person or persons, managing, agent, officer of the association, or committee of the board comprising less than a majority of the directors.
(2) "Meeting" means either of the following:
(A) A congregation of a majority of the members of the board at the same time and place to hear, discuss, or deliberate upon any item of business that is within the authority of the board.
(B) A teleconference in which a majority of the members of the board, in different locations, are connected by electronic means, through audio or video or both. A teleconference meeting shall be conducted in a manner that protects the rights of members of the association and otherwise complies with the requirements of this title. Except for a meeting that will be held solely in executive session, the notice of the teleconference meeting shall identify at least one physical location so that members of the association may attend and at least one member of the board of directors shall be present at that location. Participation by board members in a teleconference meeting constitutes presence at that meeting as long as all board members participating in the meeting are able to hear one another and members of the association speaking on matters before the board.

1353.9. (a) Any covenant, restriction, or condition contained in
any deed, contract, security instrument, or other instrument
affecting the transfer or sale of any interest in a common interest
development, and any provision of a governing document, as defined in
subdivision (j) of Section 1351, that either effectively prohibits
or unreasonably restricts the installation or use of an electric
vehicle charging station in an owner's designated parking space,
including, but not limited to, a deeded parking space, a parking
space in an owner's exclusive use common area, or a parking space
that is specifically designated for use by a particular owner, or is
in conflict with the provisions of this section is void and
unenforceable.
(b) (1) This section does not apply to provisions that impose
reasonable restrictions on electric vehicle charging stations.
However, it is the policy of the state to promote, encourage, and
remove obstacles to the use of electric vehicle charging stations.
(2) For purposes of this section, "reasonable restrictions" are
restrictions that do not significantly increase the cost of the
station or significantly decrease its efficiency or specified
performance.
(c) An electric vehicle charging station shall meet applicable
health and safety standards and requirements imposed by state and
local authorities as well as all other applicable zoning, land use or
other ordinances, or land use permits.
(d) For purposes of this section, "electric vehicle charging
station" means a station that is designed in compliance with the
California Building Standards Code and delivers electricity from a
source outside an electric vehicle into one or more electric
vehicles. An electric vehicle charging station may include several
charge points simultaneously connecting several electric vehicles to
the station and any related equipment needed to facilitate charging
plug-in electric vehicles.
(e) If approval is required for the installation or use of an
electric vehicle charging station, the application for approval shall
be processed and approved by the association in the same manner as
an application for approval of an architectural modification to the
property, and shall not be willfully avoided or delayed. The approval
or denial of an application shall be in writing. If an application
is not denied in writing within 60 days from the date of receipt of
the application, the application shall be deemed approved, unless
that delay is the result of a reasonable request for additional
information.
(f) If the electric vehicle charging station is to be placed in a
common area or an exclusive use common area, as designated in the
common interest development's declaration, the following provisions
apply:
(1) The owner first shall obtain approval from the association to
install the electric vehicle charging station and the association
shall approve the installation if the owner agrees in writing to do
all of the following:
(A) Comply with the association's architectural standards for the
installation of the charging station.
(B) Engage a licensed contractor to install the charging station.
(C) Within 14 days of approval, provide a certificate of insurance
that names the association as an additional insured under the owner'
s insurance policy in the amount set forth in paragraph (3).
(D) Pay for the electricity usage associated with the charging
station.
(2) The owner and each successive owner of the charging station
shall be responsible for all of the following:
(A) Costs for damage to the charging station, common area,
exclusive use common area, or separate interests resulting from the
installation, maintenance, repair, removal, or replacement of the
charging station.
(B) Costs for the maintenance, repair, and replacement of the
charging station until it has been removed and for the restoration of
the common area after removal.
(C) The cost of electricity associated with the charging station.
(D) Disclosing to prospective buyers the existence of any charging
station of the owner and the related responsibilities of the owner
under this section.
(3) The owner and each successive owner of the charging station,
at all times, shall maintain a homeowner liability coverage policy in
the amount of one million dollars ($1,000,000), and shall name the
association as a named additional insured under the policy with a
right to notice of cancellation.
(4) A homeowner shall not be required to maintain a homeowner
liability coverage policy for an existing National Electrical
Manufacturers Association standard alternating current power plug.
(g) Except as provided in subdivision (h), installation of an
electric vehicle charging station for the exclusive use of an owner
in a common area, that is not an exclusive use common area, shall be
authorized by the association only if installation in the owner's
designated parking space is impossible or unreasonably expensive. In
such cases, the association shall enter into a license agreement with
the owner for the use of the space in a common area, and the owner
shall comply with all of the requirements in subdivision (f).
(h) The association or owners may install an electric vehicle
charging station in the common area for the use of all members of the
association and, in that case, the association shall develop
appropriate terms of use for the charging station.
(i) An association may create a new parking space where one did
not previously exist to facilitate the installation of an electric
vehicle charging station.
(j) An association that willfully violates this section shall be
liable to the applicant or other party for actual damages, and shall
pay a civil penalty to the applicant or other party in an amount not
to exceed one thousand dollars ($1,000).
(k) In any action to enforce compliance with this section, the
prevailing plaintiff shall be awarded reasonable attorney's fees.