HOA Law Blog

Blog post by David Swedelson, Partner, SwedelsonGottlieb, California condo lawyer and HOA attorney

I recently posted a blog article and link to my article about the $55,000 dog. Out of Toronto comes word of an (almost) $40,000 parrot. Some owners are finding that their pets can be very expensive if they do not comply with their condominium or homeowner associations' governing documents.

According to the article (follow this link), a Toronto (Canada) condominium association took action when neighbors complained of hearing the parrot. Apparently, this condominium association has a no pet policy. The homeowner, who owned the unit at the association since 1989, thought that the “no pet” policy applied only to dogs and cats. At first, the owner claims he tried to make a joke of the dispute, writing a sarcastic letter to the board asking if it would be OK if he had a goldfish. The answer was no. Apparently, his association takes the prohibition on pets very seriously, as they should.

The owner claims that he was merely taking care of the parrot for a friend for about 2 weeks, and that he did not even remember the parrot’s name nor what it talked about. But apparently, the neighbors did hear that parrot, and the board did not believe that the bird had been removed from the unit. After the owner provided 3 affidavits confirming that the parrot was not living in the unit, the board made its own inspection. After not finding the bird, the board claimed that the owner had removed the bird in a blanketed box (which they observed on surveillance video). And we thought that this kind of thing only happened at California condominium associations!

After the owner consented to a court order to get rid of the bird (the one he claimed did not live in his unit), and pay $3000 in court costs to his condo association, he learned that his board was recording a lien on his unit to recover “actual additional costs” that the board claimed the association incurred while trying to evict the parrot. The board was seeking a whopping $41,599.

Not quite sure how the dispute got before a judge (perhaps when the association sought legal assistance to foreclose on the lien), but the judge rejected the association's claim and ordered that the homeowner pay $6500, less $5000 in court costs awarded to the owner for winning a motion challenging the fees and costs being demanded by the association. The owner's attorney was quoted as saying “we argued the fees were excessive, and the court agreed with us.” The court noted that both parties had waived opportunities for mediation. That may have been a mistake, as the Toronto condominium association spent a fortune to get rid of a bird that may not have existed.

In the case of the $55,000 dog, the subject of the “$1000 Per Pound Dog” article, the owner also argued that the fees were excessive, and the court rejected that argument. “A lesson, perhaps, in what happens when most of the talking is done by a bird.”

Have pet issues at your California condo or homeowners association? Comments or questions? David Swedelson can be contacted via email: dcs@sghoalaw.com

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

Think the court will not award significant attorney's fees in a breach of CC&Rs case? In Klein v. Nyamathi (Bell Canyon HOA), a recent (unpublished) Court of Appeals Decision, the Nyamathis were found liable to their neighbors at a planned development located in the Bell Canyon area of Southern California for almost $400,000 for improperly grading their property and, as a result, flooding the Kleins’ property under nuisance and breach of contract/CC&Rs theories. The Kleins also sued their HOA, claiming that the board had failed to enforce the CC&Rs as to their neighbors; the HOA settled before trial.

The trial court also awarded the Kleins attorney’s fees of $552,655.75 and costs of $63,595.83, over $600,000. The Nyamathis appealed, contending that while the Kleins may be entitled to their attorney's fees for the breach of the CC&Rs claims, they were not entitled to all of the fees, as some of the claims were not covered by the CC&Rs. They argued that the fees must be apportioned. The Court of Appeal did not agree.

The planned development's CC&Rs did have a prohibition on nuisances, as most associations have, and the flooding was a nuisance allowing for the award of fees. The Court of Appeal found that no allocation of fees was necessary between compensable and noncompensable claims because the same facts and evidence were interrelated to all theories of recovery.

Follow this link for David Swedelson's letter to the Court of Appeal requesting that this decision be published so it can be cited as law, as often California community associations are required to sue owners for both CC&R violations and for other causes of action.

David Swedelson was an expert consultant in this case. He can be reached for comments: dcs@sghoalaw.com

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

As of April 22, 2010, the new Environmental Protection Agency lead paint requirements for most dwelling units and common areas within homeowners associations which were built before 1978 became effective and may impact many California Community Associations.

Under the EPA’s Lead Based Paint Renovation, Repair and Painting Program Rule, firms who are paid to perform work which “disturbs” paint in non-exempt pre-1978 residential housing and multi-family structures (condominiums, stock cooperatives) must be EPA certified, and all individuals who are actually performing the work must either be certified renovators or must have been trained by a certified renovator. Additionally, all renovations must be performed according to EPA lead-safe standards and practices. (Two additional provisions of the law are already in effect — EPA specified notification requirements to owners and occupants, and EPA record keeping requirements.)

The requirements of the new rule apply to all “renovations”, and the law defines that term very broadly to include most repairs, remodeling, and maintenance activities, including window replacements. Additionally, electrical, plumbing and carpentry work could also be subject to the law.

So if your association has on staff construction personnel on staff, and there is lead in the paint on your common area walls (exteriors and corridors), and your staff is not EPA certified, then they cannot do any work that disturbs the lead paint.

There are some exemptions to the law’s requirements, including the following:
• Housing built in 1978 or later.
• Housing for elderly or disabled persons, unless children under six reside or are expected to reside there.
• Zero bedroom dwellings (studio apartments, dormitories, etc.).
• Housing or components declared to be lead-free by a certified inspector or risk assessor.
• Minor repair and maintenance activities that disturb 6 square feet or less of paint per room inside, or 20 square feet or less on the exterior of a home or building. However, minor repair and maintenance activities do not include window replacement and projects involving demolition or prohibited practices.

And where the firm doing the work obtains a signed statement from the owner that all of the following are met, then the training, certification and work practice requirements of the rule do not apply:

• The renovation will occur in the owner’s residence
• No child under age 6 resides there;
• No woman who is pregnant resides there;
• The housing is not a child-occupied facility; and
• The owner acknowledges that the renovation firm will not be required to use the work practices contained in the EPA rule.

It is important to note that there are severe penalties for violations of this law, including fines of up to $32,000 per violation, per day.

By David C. Swedelson, Esq., Senior Partner at SwedelsonGottlieb; Condo Lawyer and HOA Attorney

Not a week goes by that we do not hear from a manager or member of a board of directors inquiring as to whether or not the association has to enforce the governing documents. Often, the enforcement “issue” has to do with an alleged nuisance that may be impacting only one owner such as cigarette or marijuana smoke, noises from hard surface flooring in the unit above, or an odor. This question often leads to debate between board members, as to whether the association is absolutely obligated to enforce the restrictions and the CC&Rs.

Attorneys have for years generally followed the concept that community associations should not likely bring legal action in neighbor-to-neighbor disputes, even if the dispute involves a violation of the CC&Rs. But does this mean that the association should not get involved at all? Probably not.

Follow this link to read the entire article.

View the slideshow presentation prepared by David Swedelson of SwedelsonGottlieb and Diana Wright of Action Property Management for a recent seminar held by the Community Associations Institute - Orange County Regional Chapter.

Blog post by David Swedelson, Senior Partner at SwedelsonGottlieb, Condo lawyer and HOA attorney

An interesting article on condos and FHA-backed financing is making the rounds on the Internet. Originally published in the Chicago Tribune Buying and appearing in the February 13th edition of the LA Times, the article (follow this link) states that buying a condominium is getting trickier for anyone who wants to put down only 3.5 percent and have the government insure their mortgage.

The article suggests that the issue isn't just the borrower's financial wherewithal; “It's the building's, and plenty of condos no longer get a thumbs-up from the Federal Housing Administration.”

As the article points out (and as you have likely heard), since Feb. 1, 2010, condo buyers haven't been able to secure unit-by-unit "spot" approval for FHA-backed mortgages if an entire association was not certified. Instead, the federal government set criteria to determine the financial viability of an entire building before deeming the project as FHA-approved, even if it had previously been certified. An approval lasts two years.

Continue reading " Condo Buyers Frustrated In Hunt For FHA Mortgages " »

SwedelsonGottlieb Senior Partner David Swedelson will be a speaker at the Orange County Chapter of Community Associations Institute’s (CAI) February 14, 2012 educational program “Dealing With Nuisances.” For more information about this program and to sign up, follow this link.

· Learn what a nuisance is and the types of common nuisances.

· Understand issues that need to be taken into consideration with respect to nuisance violations involving smoking, hoarding, hard surface flooring, pets and parking.

· Obtain insight into the enforcement rights and limitations of associations with respect to nuisances.

· Develop an understanding of neighbor-to-neighbor disputes, fair housing and other issues related to nuisance violations.

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

We are often asked by boards and managers whether a California condominium or planned development homeowners association (HOA) has the right to have a dog or another pet removed from the association because it violates the association's governing documents. Sometimes, the violation has to do with the dog creating a nuisance, barking incessantly or creating other problems such as being too aggressive and threatening. Other times, the dog is too large and does not comply with the association's governing documents, which may limit the size of the dog, or other pet for that matter, that can be maintained at the association. And sometimes, the CC&Rs may limit the number of pets an owner can maintain in their unit.

The answer is yes, an association can seek to have the pet removed if the resident's pet is violating the association's governing documents. And there is a good chance that an association would be able to have that pet removed. Such was the case in the San Vicente Villas Homeowners Association vs. Cohen lawsuit which we prosecuted all the way to the California Court of Appeal. We wrote an article some time ago following the Appellate Court's decision in 2003 confirming the trial court's decision that Ms. Cohen's dog must be removed from the Association. Follow this link to our article, The $1000 Per Pound Dog.

Continue reading " Yes, California Condominium And Homeowner Associations Can Have A Dog Removed " »

SwedelsonGottlieb Senior Partner Sandra Gottlieb was recently honored by the Orange County Chapter of Community Associations Institute as its 2011 Speaker of the Year. Sandra, along with Debra Warren of Cinnabar Consulting and Farrah Esquer of Cardinal Property Management, received this prestigious award as a result of their January 2011 presentation entitled "Keeping it Professional in a Social Setting."

Sandra is a regular speaker at CAI-OC seminars and events, as well as seminars held by other chapters of CAI throughout California and nationally. Her next CAI speaking engagement will be on February 17, 2012 with the Channel Islands Chapter, "A Managers' Townhall: Trending Topics in 2012". You can also see her at the California Association of Community Managers' Southern California Law Seminar on February 10, 2012, where she will be a co-speaker on "Stories from the Trenches: 12 Lessons in Community Manager Liability".

The following was reported by Community Associations Institute (CAI) by Andrew S. Fortin, Esq., CAI’s vice president of government and public affairs.

The Consumer Financial Protection Bureau (CFPB), which officially opened for business in July, was created by Congress to enforce most federal financial consumer protection laws and to protect consumers from harmful financial products.

The CFPB has the authority to set standards that govern almost every aspect of the mortgage lending and closing process. Because CAI members have a keen interest in the development of CFPB’s rules and regulations that could affect community associations, CAI recently added a special section about the CFPB to our Mortgage Matters program. CAI is particularly interested in the CFPB’s actions on transfer fees, association assessments, foreclosure prevention, mortgage servicing standards and the definitions of qualified mortgage and real estate settlement fees.

Continue reading " Legislative Update: CAI Monitors New Consumer Financial Protection Bureau (CFPB) " »