February 13, 2014

Thomas the Tank Engine has a Useful Song for Homeowners About Rules & Regulations

Most homeowners at condo or HOAs follow their association’s rules. A few “bend the rules a bit.” And although they know that they “should be doing as“ the rules require, they don’t.

They seem to believe that doing things the “wrong way may seem easier,”
“It doesn't matter who you are, obey the rules and you'll go far.”

We have to assume that those who violate the rules did not listen and take to heart what Thomas the Tank Engine meant when he sang his Rules & Regulations song. For those of you who have forgotten it, here is a video of the song and below are the lyrics (and maybe you will want to share this with some rule violators out there).

Looking for a better way
And you think you've got it all under control
And so you bend the rules a bit
As you try to make things fit
But you know you should be doing as you're told

Although sometimes you'll find it so hard
And the wrong way may seem easier
It doesn't matter who you are
Obey the rules and you'll go far

We all live by rules and regulations
Rules and regulations now
Isn't it a bore, isn't it a chore
Sometimes it's so hard remembering all those
Strict rules...codes...laws...all those stipulations
Rules and regulations now
But without those rules and regulations
Where would we be now?

So you see you have to try and do the right thing every time
If you do, then you will come to the conclusion
That there is right and there is wrong
And the rules help you along
And they're really only there for your protection

Although sometimes you'll find it so hard
And the wrong way may seem easier
It doesn't matter who you are
Obey the rules and you'll go far

We all live by rules and regulations
Rules and regulations now
Isn't it a bore, isn't it a chore
Sometimes it's so hard remembering all those
Strict rules...codes...laws...all those stipulations
Rules and regulations now
But without those rules and regulations
Where would we be now?

February 5, 2014

Justin Bieber Violates HOA Rules, Pisses Off His Neighbors, and Some Threaten to Stop Paying Assessments — What is the Association To Do?

By David Swedelson, Senior Partner at SwedelsonGottlieb, Community Association Attorneys

bieber.pngThis was the title of a recent newspaper article. As Justin Bieber has been in the news too often lately and seems to be spiraling out of control, and as there is now a community association component to the story, I thought it only fitting that we address the community association issues raised by his recent activities.

The article (in the LA Times) reported about an alleged incident in late May and June of 2013 at the Calabasas planned development HOA where Bieber owns a home (one he apparently resides in). It is claimed that Bieber was involved in a high-speed chase on the association’s streets on Memorial Day 2013, as former NFL player Keyshawn Johnson — in his Toyota Prius hybrid — chased after Bieber — who was purportedly driving his white Ferrari, in an effort to catch “the Bieb” speeding in the HOA too close to Johnson's kids. Johnson claims that Bieber drove to his home, jumped out of the Ferrari, and ran inside before Johnson could confront him. Bieber later claimed that security footage proved it wasn't him behind the wheel.

Continue reading "Justin Bieber Violates HOA Rules, Pisses Off His Neighbors, and Some Threaten to Stop Paying Assessments — What is the Association To Do?" »

January 15, 2014

A Fine Change in the Law That all Boards Must Acknowledge

By Cyrus Koochek and David Swedelson, Community Association Attorneys, SwedelsonGottlieb

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It is a fact of community association governance that at some point, every community association board of directors will likely have the need to levy a fine on a member. Most associations have adopted a schedule of monetary penalties or fine policy setting forth the fines that the board will impose in the event there is a violation of the governing documents. Whether an association plans to amend or adopt a new or revised fine policy, or do nothing at all with its current fine policy, all associations must now comply with changes in the new Davis-Stirling Act (effective January 1, 2014) relating to fines.

Former California Civil Code Section 1363(f) provided that if an association adopts or has adopted a policy imposing any monetary penalty, the Board must distribute the policy to all members via first class mail or personal delivery when the schedule is first adopted or when revised. The former code section was ambiguous and some believed that it did not require that the board disclose/distribute the fine policy on a yearly basis. The code just required that the board distribute any fine policy it did adopt/revise at that time. Thus, for example, if an association did not revise its fine policy for 10 years, some interpreted the former code section to say that there was no obligation to distribute it to the members regularly. This led to some confusion and disagreements.

Continue reading "A Fine Change in the Law That all Boards Must Acknowledge" »

January 9, 2014

New Davis-Stirling Act Reemphasizes Common Area Reimbursement Assessments

By David Swedelson and Cyrus Koochek, Community Association Attorneys at SwedelsonGottlieb

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Many California condominium and homeowner associations' CC&Rs permit the Board of Directors, on behalf of an association, to impose a reimbursement assessment/monetary charge on a member for the cost of repairing damage caused by a member (or the member’s guest or tenant) to association common areas and facilities. In addition to an association’s authority under the CC&Rs to impose a reimbursement assessment, former California Civil Code Section 1367.1(d) stated that “[a] monetary charge imposed by the association as a means of reimbursing the association for costs incurred by the association in the repair of damage to common areas and facilities…may become a lien against the member’s separate interest enforceable by the sale of the interest…”

Unlike other monetary charges that can be imposed on members, such as monetarily fining a member for a rule violation, reimbursement assessments may be enforced by recording a lien on a member’s property. And effective January 1, 2014, the new Davis-Stirling Act now expressly requires what we have been advising our clients for years, that Boards must hold a hearing before they can impose a fee or penalty on an owner for the cost of repairing damage to the common area.

Continue reading "New Davis-Stirling Act Reemphasizes Common Area Reimbursement Assessments" »

November 26, 2013

If San Rafael Can Restrict Smoking In Units, So Can Your Condo Association

By David Swedelson, Senior Partner, SwedelsonGottlieb, Community Association Attorneys
San_Rafael_Smoking_Ban__Strictest_In_The_Nation__Goes_Into_Effect.pngSan Rafael, a city just north of San Francisco, recently made active a smoking ban which prohibits smoking cigarettes inside any dwelling that shares a wall with another unit and this would include condominiums. It is considered the strictest smoking ban in the country. Follow this link to read the story.

San Rafael made it clear that it is the City’s hope to eliminate secondhand smoke from creeping through doors and windows, ventilation systems, floorboards another susceptible openings. Boards and managers for condo associations tell us that they want to do the same thing. What we tell them is that they can, if they are willing to invest the necessary time and effort.

Condominium associations have approached us regarding an amendment to their CC&Rs that would prohibit smoking within the units themselves. Many of our condominium association clients already have bans on smoking in the common area as the board has the power and authority to make rules regarding use of the common area. But when it comes to restricting smoking within a unit itself, that must be done by an amendment to the CC&Rs.

Continue reading "If San Rafael Can Restrict Smoking In Units, So Can Your Condo Association" »

November 11, 2013

When Fido Goes Rogue: How Does Your HOA Deal With Dangerous Dogs?

By David Swedelson, Condo Lawyer, HOA Attorney, Partner at SwedelsonGottlieb, and Dog/Pet Lover

vicious_dogs_-_Google_Search.pngAccording to an article in the Tuesday, November 5, 2013 edition of the Los Angeles Times (follow this link for the article), Orange County supervisors are debating a proposal to create a website showing where every dangerous offender in the county is located. Not human -- canine. The website would do for dogs what Megan’s Law does for sex offenders. County supervisors believe that citizens have the right to know where both are located.

How serious is the problem? In 2012, Orange County Animal Care investigated 264 dangerous dog reports, which led to 66 dogs being euthanized -- fully 25 percent. There were also 2,281 reports of dog bites in the O.C. area. We can only assume that other counties in California have just as serious a problem as OC has reported.

Continue reading "When Fido Goes Rogue: How Does Your HOA Deal With Dangerous Dogs?" »

October 11, 2013

Governor signs Senate Bill 298 Into Law; Unusual Legislation Giving Orange County (California) Community Associations The Ability To Contract For Services With Local Law Enforcement

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

vehicle_law_enforcement_-_Google_Search.png SB 298, which adds Section 53069.81 to the Government Code, is an unusual piece of legislation that provides community associations in one county of California with the ability to contract with local law enforcement agencies to provide Vehicle Code enforcement services at the association. We had not heard about this bill until now and do not know why it was limited to Orange County community associations as we know that associations in other parts of the State have a need for help with enforcement of the Vehicle Code on their private streets.

AB 298 authorizes the Board of Supervisors of the County of Orange, or the city council of a city within this county, to contract to provide supplemental law enforcement services to a homeowners’ association on an occasional or ongoing basis to enforce the Vehicle Code on a homeowners’ association’s privately owned and maintained road, as provided by Vehicle Code Section 21107.7.

Word has it that this legislation was proposed by a couple of very large Orange County community associations who want to enforce the vehicle code inside the boundaries of the association and presumably on their private streets. This new law will allow any Orange County community association, gated or not, which has privately owned and maintained roads, and would like to have enhanced services for such things as special occasions or traffic enforcement, to now be able to contract for those services with a law enforcement agency.

Fees for the actual costs of these services will be charged by and paid to the county or city that is providing those services, or as determined by the county auditor or auditor-controller or the city auditor.

If you have an interest in being able to contract with local law enforcement for services related to enforcement of the Vehicle Code in your community that is outside Orange County, let your legislator know and maybe this Bill can be expanded to other counties in California.

David Swedelson is a condo lawyer and HOA Legal Expert. David has served as a Delegate and on the Executive Committee for the California Legislative Action Committee. He can be reached via email: dcs@sghoalaw.com

July 11, 2013

David Swedelson To Speak on Nuisances - CAI National Webinar

SwedelsonGottlieb Senior Partner David Swedelson has been asked by Community Association Institute (CAI) - National to speak on Homeowner Hassles: Dealing With Nuisance Violations. This will be a part of CAI National's series of webinars and will be broadcasted on July 17, 2013 (and available as a download later). For more information on this program, follow this link.
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July 11, 2013

SwedelsonGottlieb Prevails In Spite Fence (View Obstruction) Lawsuit

By David Swedelson, Senior Partner at
SwedelsonGottlieb, Community Association Attorneys

SwedelsonGottlieb_Prevails_In_Spite_Fence__View_Obstruction__Lawsuit___Entries___HOA_Law_Blog___Movable_Type_Publishing_Platform.pngA longtime client of the firm was sued by a woman that did not live in the association who claimed that our client had illegally obstructed her view of a lake owned by our client association. After a jury trial on the sole cause of action that was left after we prevailed on a motion for summary adjudication knocking out all of her other frivolous claims, the jury decided that there was no spite fence. This result was not a surprise as the plaintiff was not entitled to her view of the lake, no matter how precious it was to her.

Here are the facts: the plaintiff’s home bordered a park that the association owned and maintained and she was entitled to use the park. The park was between the plaintiff’s home and the lake, hundreds of feet separating her home from the lake. The park had been, at the time the plaintiff built her home, unimproved except for two 200 year old oak trees that partially obstructed her view. Otherwise, the park was made up of dirt and native grasses. Her neighbors wanted the park improved and prevailed upon the developer of the association to improve the park as was required by the development documents and the county. Exhibit_6a_Patterson_Home_before_Park.pdf__1_page_.pngThe plaintiff did enjoy a view of the association’s lake. But her view became obstructed several years later when the trees that the association’s developer planted grew up.

The plaintiff’s property, while not part of the association, is part of a community association, which unlike the association that is our client, is not a mandatory membership community association. It is a voluntary association, formed to manage issues of the homes in and around the plaintiff’s home (which homes were built before the association was formed). The plaintiff acknowledged that there were no restrictions on the land that require that she be provided a view or that require that our client association provide the plaintiff with an unrestricted view of the lake.

[NOTE: In the 1986 case of Pacifica Homeowners Association v. Wesley Palms Retirement Community, the California Court of Appeal concluded that "[a]s a general rule, a land owner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right." However, "such a right may be created by private parties through the granting of an easement or through the adoption of conditions, covenants and restrictions ..."]

Continue reading "SwedelsonGottlieb Prevails In Spite Fence (View Obstruction) Lawsuit" »

July 10, 2013

Do You Know What Your Community Association Volunteers Are Doing? Do They Carry Guns? Maybe You Need To Better Supervise

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

openly_carrying_guns_-_Google_Search.pngAfter the Trayvon Martin shooting in Florida last year, I posted a blog article highlighting the need for community associations to supervise their volunteers. Follow this link for that March 2012 blog article. If you have been following the George Zimmerman trial at all, you would understand how important it is for community associations to supervise their volunteers. I am not following the day to day testimony at the trial but I have heard enough to tell me that perhaps George should not have been allowed to patrol his association looking for bad guys.

Apparently, in Florida, the community associations have volunteers that carry guns. I was alerted to a news report out of Orlando where a woman reported that she was sitting on a pier at a homeowners association when a man who said he was an HOA official came up to her brandishing a gun she claims he pointed at her, telling her that the pier was closed.

Continue reading "Do You Know What Your Community Association Volunteers Are Doing? Do They Carry Guns? Maybe You Need To Better Supervise" »

May 24, 2013

View Protection At California Condo and Homeowner Associations: It’s Complicated

By David Swedelson, Condo Lawyer and HOA Attorney; Senior Partner at SwedelsonGottlieb, Community Association Attorneys

view.pngMany owners buy units, lots or homes at community associations that have views and are later shocked to learn that the view they cherish, the view that caused them to buy that home, is not guaranteed. The question that has been posed is whether or not property owners are entitled to an unobstructed view. With some exceptions, the answer in California is “no.” The California Supreme Court spoke on this subject in the late 19th century case of Kennedy v. Burnap and established the doctrine in California that one’s ownership of land does not imply a right to force owners of neighboring land to refrain from obstructing the view from the land or the light and air reaching the land. This law has not changed all that much since that case was decided in 1898.

Covenants, conditions and restrictions (“CC&Rs”) governing the use of land in common interest developments provide some protection for views. California law allows a community association’s CC&Rs to restrict view obstructions within the development as long as the restriction is reasonable. Restrictions on improvements or landscaping that obstructs a neighboring owner’s view do exist in CC&Rs in some, but not all, California condominium and homeowner associations. And they have been the subject of much litigation. And they have been successfully enforced. Some associations’ CC&Rs do not guarantee a view but only make an owner’s view a consideration when the association is considering another owner’s request to make a modification that would impact another owner’s view.

In the 1986 case of Pacifica Homeowners Association vs Wesley Palms Retirement Community, the California Court of Appeal concluded that "[a]s a general rule, a land owner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right." However, "such a right may be created by private parties through the granting of an easement or through the adoption of conditions, covenants and restrictions..."

To read the entire article, follow this link.

April 29, 2013

Exclusive Use Common Area — It’s Complicated, Misunderstood and, Hopefully, Soon to be Clarified

By David Swedelson, Condo Lawyer and HOA Attorney, Partner, SwedelsonGottlieb, Community Association Attorneys

pipes.pngA pipe, window or some other element of the common area leaks or breaks, and a condo association board decides that it is exclusive use common area and the unit owner’s repair and/or replacement responsibility, as it serves only that one unit. The problem is that this is not what the law provides. And while it may be what many board members and managers want to see happen, this is really contrary to the condominium concept where, unless the CC&Rs otherwise state, the association is responsible for the repair or replacement of the common area, and exclusive use common area is part of the common area. Let's face reality, we really do not want to see owners opening up and trying to repair the common area, as they may likely not do the right repair, and that may come back to haunt the association in the future (after that owner has sold and moved).

Continue reading "Exclusive Use Common Area — It’s Complicated, Misunderstood and, Hopefully, Soon to be Clarified" »

April 24, 2013

Community Associations' Failures to Deal With Bad Neighbors Could Have a Negative Impact on Property Values

By David Swedelson, Condo Lawyer and HOA Attorney; Senior Partner at SwedelsonGottlieb, Community Association Attorneys

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Every condo or homeowners association has one, that one owner that does not follow the rules, violates the CC&Rs, creates a nuisance or worse. The "bad" owner, the one that does not belong in a deed restricted community. And we often hear complaints from other owners suggesting that the bad neighbor is bringing down property values at their association. Turns out they may be right. According to a recent article in the New York Times regarding a neighbor’s effect on appraisals, “[w]hen calculating the value of a property, an appraiser also factors in surrounding conditions. Neighborhood nuisances, like an overgrown yard or a persistent odor, could in some cases bring down the value of adjacent homes by 5-10%...”

Continue reading "Community Associations' Failures to Deal With Bad Neighbors Could Have a Negative Impact on Property Values" »

April 10, 2013

Condo or HOA Foreclosed-What To Do With Abandoned Property In California

By Joan Lewis-Heard, Community Association Attorney/Litagator; Edited by David Swedelson, Senior Partner at SwedelsonGottlieb.

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So, your condo or homeowners association foreclosed on an assessment lien and is unfortunately the owner of a unit or home at the association. Not what the association wanted, but a reality as a result of the Great Recession. As this situation is not untypical for landlords, it is dealt with by the California Civil Code.

For the purposes of this discussion and issue, the former owner is considered a tenant as the association is now the owner. Where personal property remains on the premises/in the unit after a tenancy has terminated and the premises/unit has been vacated by the tenant, the association must give written notice to the tenant/former owner and to any other person the Association reasonably believes to be the owner of the property.

Continue reading "Condo or HOA Foreclosed-What To Do With Abandoned Property In California " »

March 14, 2013

Condo Association Held Liable for not Addressing Secondhand Smoke Complaints

By David Swedelson, Condo Lawyer and HOA Attorney; Partner at SwedelsonGottlieb, Community Association Attorneys

smokingcigarette.png Think your condo association has no obligation to address secondhand smoking nuisance complaints? Think again. The Orange County Register reports that an Orange County jury has found a homeowners association negligent and in breach of the CC&Rs for failing to resolve a secondhand smoke dispute between neighbors at a Trabuco Canyon condominium association.

After a five-week trial (imagine being a board member and having to sit through 5 weeks of trial), the jury awarded a family more than $15,000, “finding the condo association and management failed to ensure the non-smoking family's right to the ‘quiet enjoyment’ of their own unit.”

Continue reading "Condo Association Held Liable for not Addressing Secondhand Smoke Complaints" »

January 3, 2013

Rental Restrictions: An International Issue

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

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The Los Angeles Times reports (on January 1, 2013) that as a result of government imposed fees on investors that do not reside in their apartments (we assume condos) or buy to flip them, in Hong Kong real estate investors are scrambling to buy parking spaces that are not subject to the fees. “Single spaces are now selling for more than some modest Southern California homes. Someone paid $288,000 in November 2012 for a parking space in a luxury apartment complex on Hong Kong Island. Or the $166,000 tab for a spot in a suburban development called Festival City. A space attached to an exclusive cliffside townhouse community in the ocean view neighborhood of Repulse Bay fetched $385,000 in March. And those are just the recorded sales.”

Continue reading "Rental Restrictions: An International Issue" »

January 2, 2013

Exemptions from Rental Restrictions; Not All Transfers Apply

By Sandra L. Gottlieb and Priya Aggarwal, Community Association Attorneys
at SwedelsonGottlieb

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California Civil Code Section 1360.2 went into effect on January 1, 2012, a little over one year ago, and states that any new provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests is not applicable to anyone who purchased before the date the governing document and/or amendment was adopted or recorded unless that person expressly consents to be bound. Notwithstanding the limitations created by Civil Code Section 1360.2, many community associations are still adopting new rental restrictions to be applied to new owners or transferees. What they are learning is that not all transfers of an interest in a property will be covered by Civil Code Section 1360.2 which allows for certain exemptions from a leasing restriction. Certain transfers of property do not constitute a change in ownership and therefore, the new owner may not be subject to any provisions prohibiting leasing that were adopted after the new owner obtained title to the separate interest (i.e., unit or lot).

Continue reading "Exemptions from Rental Restrictions; Not All Transfers Apply" »

December 30, 2012

Family Day Care Homes Can Operate Within California Community Associations—So Long As They Follow The Law

By Sandra L. Gottlieb, Esq. & Priya Aggarwal, Esq., SwedelsonGottlieb, Community Association Attorneys

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Did you know that California community associations are required to allow an owner to operate a “family day care home” within their unit or lot at an association and that the day care can have up to 14 kids in it!? Yup, it is true. This blog post is intended to address family day care homes and what your association can do to deal with them to reduce, if not eliminate, its liability and protect the community.

Continue reading "Family Day Care Homes Can Operate Within California Community Associations—So Long As They Follow The Law" »

November 29, 2012

Are Persons Who Are Not Owners Allowed to Attend Association Board Meetings? Yes, If The Board Allows This. Otherwise, The Answer Is No.

Screenshot%2011%3A29%3A12%207%3A17%20PM.pngBlog Post By Alex Noland and David Swedelson, SwedelsonGottlieb Community Association Attorneys

We are often asked whether persons who are not members of the association can attend association board meetings. The short answer to this question is yes, subject to the considerations discussed below. We are also asked if non-members can be excluded from board meetings; the answer is yes, and this is also subject to considerations that are addressed below.

California Corporations Code § 1363.05, known as the Common Interest Development Open Meeting Act, provides, at subsection (b), that any member of the association may attend meetings of the association’s oard of directors, except executive session meetings of the board. This statutory provision is silent as to whether non-owner residents of the association or other non-members can attend open/general session Board meetings. Further, most association’s bylaws do not prohibit non-members from attending board meetings, and are silent on this issue.

Continue reading "Are Persons Who Are Not Owners Allowed to Attend Association Board Meetings? Yes, If The Board Allows This. Otherwise, The Answer Is No. " »

November 27, 2012

Complaints From Annoyed Neighbors? Loud Sex, Smoke & Noise!

You-are-so-annoying.jpgBlog Post by David Swedelson, Partner SwedelsonGottlieb

As community association attorneys, we are often called upon to deal with neighbor to neighbor complaints and disputes. Well, often is probably an understatement. How about daily? These complaints generally deal with smoke from cigarettes and more lately from (medical) marijuana, hard surface floor noise, owners that fail to pick up after their pets, loud stereos and TVs, and sometimes complaints regarding loud sex. At most condos and HOAs, residents expect their association to be their intermediary. And sometimes we do receive copies of some interesting notes that had been passed on to the offending owner or resident, and sometimes they are quite comical.

A manager of condominium associations referred me to a series of photos posted by the Huffington Post with the title "Most WTF Notes From Annoyed Owners" consisting of 31 photographs of notes from neighbors "reminding their fellow man to stop having sex so loudly, pick up their dog's waste and other assorted annoyances." The photos of notes gave me quite a chuckle, especially this one, and I thought I would share them with readers of our blog. Note that these photos include some NSFW (not safe for work) language that some might find offensive. Follow this link to see all the photos.

Have any neighbor to neighbor notes you want to share?

David Swedelson is a community association attorney and partner at SwedelsonGottlieb. He can be contacted via email at: dcs@sghoalaw.com

November 15, 2012

Towing Vehicles at your Community Association

tow.pngWe are often asked if a California condominium or homeowners association has the authority to tow vehicles from the association if the vehicle is parked in violation of the association’s Rules and Regulations. The answer is that an association has the right and authority to tow vehicles, assuming that the Association has the proper signage posted in accordance with the California Vehicle Code, the towing is conducted in accordance with the California Vehicle Code, and the association’s Rules allow for same. Do you tow vehicles at your association? Are you considering adopting rules regarding towing? We have updated our information on towing vehicles at community associations and turned it into a printable article. Follow this link to download it.

Need assistance with developing towing rules and/or policies? Contact David Swedelson at dcs@sghoalaw.com

November 9, 2012

Holiday Decorations; 'Tis the Season to Be Tolerant

holiday%20lights.pngThe holidays are just around the corner, and it's time for community association boards to start getting ready to address issues connected with holiday decorations. What kinds of limits should be placed on holiday decorations? How do you implement holiday rules and regulations? All that and more questions are answered in our article 'Tis the Season to Be Tolerant: Building a Sense of Community in Spite of Holiday Decoration Rules.

October 15, 2012

Property Owner Wins Lengthy Turf War; Judge Titles Order: “Anatomy of An HOA Dispute Run Amok”

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

grass.pngA CC&R dispute that started 11 years ago over the condition of a Tampa Florida homeowner’s lawn, a lawsuit that involved dozens of court hearings, a weeklong jury trial, two appeals and a second trial, at a cost of hundreds of thousands of dollars is finally over, and the owner prevailed. While this lawsuit occurred in Florida, it could have just as easily taken place in California. Boards at homeowners associations need to be careful when imposing charges and recording liens on an owner’s property.

The lawsuit was between an owner at the Pebble Creek HOA, a real estate broker and retired Tampa police captain, who claimed that his homeowners association illegally took action to replace his lawn in January 2002 and then recorded a $2,212 lien against the home and property for the cost of the sod.

Continue reading "Property Owner Wins Lengthy Turf War; Judge Titles Order: “Anatomy of An HOA Dispute Run Amok”" »

August 14, 2012

Can the Board Have Vehicles Towed if They are in Violation of the Rules? Maybe. It's Complicated.

By David C. Swedelson, Esq., and Ryan D. Barrett, Esq., SwedelsonGottlieb; Condo Lawyers and HOA Attorneys

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We are often asked if a California condo or homeowners association has the ability to tow vehicles from the association if they are violating the association’s Rules and Regulations. The answer is that an association does have the right and ability to tow vehicles, assuming that the towing is appropriate, does not conflict with the applicable California Vehicle Code (including having the required signage), and that the association’s Rules allow for same. Follow this link to our prior blog post regarding the basics relating to towing of vehicles from a California common interest development. This post will address when and if a California condo or HOA can tow a vehicle based on its Rules.

For the Rules to be effective, they cannot conflict with the association’s CC&Rs, and the Rules must have been properly adopted pursuant to the Civil Code. For several years, the Civil Code has required that before the board can adopt Rules, it must first send them out to all homeowners and allow thirty (30) days for homeowner comment. I would not want to see the board go through the effort of enforcing the Rules only to have a homeowner complain that the Rules were not properly adopted (as homeowners often do).

Continue reading "Can the Board Have Vehicles Towed if They are in Violation of the Rules? Maybe. It's Complicated." »

August 12, 2012

Smoke Free Housing Toolkit

Blog Post by David Swedelson
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I recently spoke at a program on secondhand smoke issues at California community associations. And I posted an article that dealt with second hand smoke and how condo and HOA associations can deal with the issue, The Smoker Next Door: Secondhand Smoke + Condominiums = Trouble

A new "Smoke-Free Housing" tool kit for owners and residents of multifamily housing, including condo associations, is available from the U.S. Department of Housing and Urban Development. The toolkit includes a guide for implementing no-smoking policies, sample resident survey and educational and research materials.

This toolkit has some valuable ideas to assist community associations in becoming smoke free. And if you are interested in amending your California community association's governing documents to deal with secondhand smoke, contact our office.

David Swedelson is a condo lawyer and HOA attorney. He is a community association legal expert. He can be contacted at dcs@sghoalaw.com

August 12, 2012

Common Scents Often Become A Condo Issue

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We hear these types of complaints all the time. While secondhand cigarette, pipe or marijuana smoke are the biggest sources of complaints, we are often asked to help associations deal with smells from other sources including cleaning products, paint and lack of ventilation, food and even perfume. I was reminded about this issue from an article that appeared in the Chicago Tribune newspaper.

As the article points out, "[w]ith many kids being asthmatic or allergic, and increasing numbers of people claiming chemical sensitivities, whether real or imagined, products that could become the trigger for an attack can become quite a hot button issue in certain associations."

The article points out that the first thing to do is accurately identify the source of the smell by talking to residents and perhaps bringing in a consultant for independent verification. Sometimes the source of the odor can be difficult to determine, as was the case recently with a planned development where a number of owners were complaining about a noxious odor that smelled like a sewer. The expert figured it out. Turned out that the storm drain system had shifted leaving an area where water, etc. ponded and did not drain away, became stagnant and smelly.

The article suggests that if the smell is found to be truly offensive and ongoing, "the quickest step would be to make sure all openings between units have been adequately caulked around all pipes, outlet covers and any other path where the smell may escape."

And as the article also points out, sometimes the solution is getting the owners together so they can better understand the issues, whether it be smoke, a pine scent cleaning product or food odors that others may not be familiar with.

And associations should take care to consider odors when carrying out projects. Recently we were called upon to counsel a board and management after an owner complained of becoming ill after the association applied a coating product to the floor of a storeroom that was immediately below the owner's unit. No one had considered the potential odor or the lack of ventilation.

David Swedelson is a condo lawyer and HOA attorney, as well as a senior partner at SwedelsonGottlieb. He can be contacted at dcs@sghoalaw.com.

August 7, 2012

Smoking Bans: An Increasingly Viable Alternative for California Condo and HOAs Seeking Ways To Address Complaints of Secondhand Smoke

By David C. Swedelson, Esq. and Ryan D. Barrett, Esq., Community Association Attorneys

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We recently published an article on secondhand smoke regarding its impact at condominium associations and how it can constitute a nuisance. Since almost every community association’s CC&Rs prohibit noxious activity, this is a fairly common and accessible means of addressing the issue. However, enforcing a nuisance claim has its challenges and drawbacks, namely, the subjective nature of defining a nuisance makes enforcement difficult, and the fact that each instance of a nuisance must be addressed individually does not make prosecution of these claims all that easy. But this is not to say that these claims are not enforceable or that California community associations should not take action, when appropriate, to eliminate nuisances.

A budding trend among community associations, or at least a topic of significant consideration, is to amend the CC&Rs to include the adoption of a community-wide smoking ban, restricting all homeowners from smoking anywhere within the Association, including their own units. While the adoption of such a ban has been historically difficult, in many areas, particularly in major cities of California, the climate is ripe for change.

Continue reading "Smoking Bans: An Increasingly Viable Alternative for California Condo and HOAs Seeking Ways To Address Complaints of Secondhand Smoke" »

August 3, 2012

Time to Update your CC&R Cover Sheets!

You may be asking what the heck a CC&R Cover Sheet is, as we expect that over time, this requirement has been forgotten. As provided for in amended Government Code Section 12956.1, which has been the law for at least 10 years, California community associations that provide a copy of the declaration (CC&Rs) must place a cover page or stamp on the first page of their CC&Rs stating, in at least 14-point boldface type, the following:

If this document contains any restriction based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status.

In October of 2011, Governor Brown signed AB 887 into law, which adds the characteristics of “gender”, “gender identity” and “gender expression.” AB 887 also amended California Government Code Section 12956.1 to require associations to place additional language on the cover sheet, and that language has been incorporated into the language in bold above.

This change in the law means that California community associations need to update the coversheet or stamp on their CC&Rs to include the new language.

Also note that there are still older sets of CC&Rs out there that contain language which discriminate on the basis of age and/or sex, but we have not seen any that discriminate in the basis of “gender identity” or “gender expression.” But, if any discriminatory language exists in an association’s CC&RS or rules (and we are referring to: race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry), that language should be removed. Pursuant to California Civil Code section 1352.5, boards are required to delete discriminatory restrictions, and can do so without obtaining the approval of homeowners.

Follow this link to download a cover sheet which complies with the requirements of amended California Government Code Section 12956.1.

May 25, 2012

The Smoker Next Door: Secondhand Smoke + Condominiums = Trouble

By David C. Swedelson, Esq., Condo and HOA Attorney

Recent reports indicate that only 12% of California adults smoke cigarettes. The problem is that they all live in condominiums, or so you would think from all the reports of problems we are receiving relating to complaints from the non-smokers who do not want to smell cigarettes.

And the issue is not limited to cigarettes; we are hearing a lot of complaints regarding pipes, cigars and marijuana. And marijuana is becoming one of the more difficult issues to deal with, as the smokers are not that considerate, and those with medical marijuana cards think that they are impervious to criticism or the complaints of others. But the fact is that smoke can be a nuisance, and nuisance is prohibited by just about every California community associations’ CC&Rs.

Someone saying that their legal right to smoke trumps the rights of the other owners is like saying that an owner can maintain their seeing/emotional support animal in violation of the CC&Rs even though the dog barks all night. I trust you get the point that no one can create a nuisance.

Because secondhand smoke is injurious to health according to most experts, many states and local governments, even low levels of exposure can be considered a nuisance. Many condominium associations are adopting or considering the adoption of restrictions or prohibitions on smoking in the common areas, exclusive use common areas such as balconies and patios, and even units.

Continue reading "The Smoker Next Door: Secondhand Smoke + Condominiums = Trouble" »

March 16, 2012

Pets Must Be On Leashes If That Is What The Rules Say

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

Some condominium and homeowner association residents think that their pet is well trained and does not need to be leashed, and they ignore the association’s rules regarding leashes, believing they do not apply to their well-trained pet. They just do not get the fact that many people are afraid of dogs, especially when they are off leash. What they also do not understand is that just as a municipality has the power to cite a citizen for not having their dog on a leash, so too does a California condominium or homeowner association have the right to enforce its leash rules.

Continue reading "Pets Must Be On Leashes If That Is What The Rules Say" »

February 21, 2012

Nuisance Provision In HOA's CC&Rs Allowed For Attorney's Fees and Costs Award of $600,000+; Allocation Not Necessary Where Same Facts And Evidence Involved On All Claims

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

February 15, 2012

Dealing With Nuisance Violations

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.

February 7, 2012

Yes, California Condominium And Homeowner Associations Can Have A Dog Removed

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" »

January 25, 2012

Therapy Playhouse Creates Controversy at HOA

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.”

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Continue reading "Therapy Playhouse Creates Controversy at HOA" »

November 9, 2011

Confidentiality Agreements; Are They Enforceable?

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

We are often asked to include confidentiality clauses in settlement agreements with owners, as the board often wants to avoid other owners hearing that the association settled. The concern is that these other owners will think it is OK to violate the CC&Rs or Rules, as they will ask for the same “sweetheart” deal. We do not want them to think this way. We do not want them to know about the settlement with their neighbor.

Sometimes, we have these clauses in agreements with developers or contractors or even former association employees who want to keep the terms of the settlement confidential.

The question whether and to what extent settlements can be kept quiet through the use of a confidentiality agreement is difficult to answer. Just ask Republican presidential candidate Herman Cain, who currently faces allegations that women formerly employed with the National Restaurant Association received financial settlements in disputes over alleged sexual harassment by Cain, the former head of the National Restaurant Association.

Continue reading "Confidentiality Agreements; Are They Enforceable?" »

October 4, 2011

Attorney Owner Wins Condo Association Wastebasket War, Uses $201K Check to Pay Off Mortgage

Blog posting by David C. Swedelson, Condo lawyer and HOA attorney; Senior Partner SwedelsonGottlieb

Amazing story out of Florida involving an attorney/owner of a condominium who asked her condo association to place a trash receptacle in the mail room so she could have a convenient place to dispose of her junk mail. When her association declined the request because of a concern about having to maintain that trash receptacle (as owners may put more than junk mail in the trash), the owner decided that she would just dump her mail on the floor. This is a true story; you can’t make this stuff up.

Continue reading "Attorney Owner Wins Condo Association Wastebasket War, Uses $201K Check to Pay Off Mortgage" »

September 10, 2011

Age-Restricted HOA Doesn't Want Young Guests Visiting

Blog posting by David Swedelson, California Condo lawyer and HOA attorney; Partner SwedelsonGottlieb

Community Associations Institute's Fast Tracks News Bulletin reports on a Fort Myers, Fla. age-restricted homeowners association that is telling an owner that that he does not have the right to have guests who are younger than 55 visit his home while he is away.

Continue reading "Age-Restricted HOA Doesn't Want Young Guests Visiting " »

September 1, 2011

Accommodating Medical Marijuana Users Does Not Mean They Can Cause A Nuisance To Other Condo or HOA Association Residents

By David C. Swedelson and Sandra L. Gottlieb, Partners, SwedelsonGottlieb, Condo Attorneys and HOA Lawyers

marijuana.jpg We have been receiving a number of calls lately from board members and community association managers asking what they can or should do about complaints from residents about marijuana smoke that is wafting into their units or homes. Many of you may be wondering why this is an issue and questioning why anyone would complain. We won’t go there. We are hearing that some of these marijuana users are saying that the association cannot stop them from smoking their medical marijuana, as they have their doctor's recommendation and it is permitted by state law. So, must California community associations accommodate medical marijuana use by residents even when it creates a nuisance for other owners/residents? We thought that the answer was pretty clear that even if a resident is legally using medical marijuana, their use cannot cause or create a nuisance which interferes with another resident's quiet enjoyment of their unit or home. Apparently this is not so clear, as we have been told that some attorneys are telling their condo association clients that they can do nothing about marijuana use by a resident who possesses a doctor's recommendation. Seriously?! We do not agree. And we have written an article on the issue. Follow this link for our full article on this subject.

July 31, 2011

Governor Signs Senate Bill 209 Dealing WIth Electric Charging Stations

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" »

July 25, 2011

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

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" »

July 5, 2011

The Why and How of Amending and Restating Association Governing Documents

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.

June 13, 2011

Homeowner Uses Billboards, Website to Defend Solar Panels

By David Swedelson, Senior Partner, SwedelsonGottlieb

As reported in several publications, including this article from MSNBC, Timothy Adams, a member of a homeowners association in Omaha, Nebraska, has taken some unusual steps to engender support for his fight against his homeowners association as he battles to keep solar panels installed on his home.

According to the MSNBC article, homeowner Adams is being sued by South Shore Heights Homeowners Association after he refused to take down the solar panels he had installed on his roof. While we have seen owners publicize their positions in letters in an effort to garner fellow owner support for their positions, Adams is spending a lot of money (and vows to spend even more) trying to generate support for his cause by putting up billboards, launching a webpage, sending letters to neighbors and utilizing social media.

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Continue reading "Homeowner Uses Billboards, Website to Defend Solar Panels" »

June 9, 2011

What Do You Mean I Cannot Hang My Banner or Sign On My Garage Door (or Window, or...)!

SwedelsonGottlieb, Condo Lawyers and HOA Attorneys

You may not be aware, but 2011 has been a historical year for California hockey, as California’s three NHL teams, the San Jose Sharks, LA Kings, and the Anaheim Ducks, all made the playoffs for the first time together. Or perhaps you were aware of this incredible feat due to the multiple proud fan displays, signs, and banners gracing the homes in your community.

But what would this momentous occasion have to do with HOA law? I am so glad you asked.

In Florida, some homeowners associations had their hands full this year as the Tampa Bay Lightning, who also made the NHL Stanley Cup playoffs, sent banners, flags and lawn signs to its devoted fans for display. Alas, as this news story reports, some Tampa HOA members who displayed such signs on their property were met with opposition by their association. Read the story as to how the ingenious owner got around the association’s objections.

Continue reading "What Do You Mean I Cannot Hang My Banner or Sign On My Garage Door (or Window, or...)!" »

May 26, 2011

Homeowners Pay Bridgeport Attorney’s Fee Award of $147,375.65

By David C. Swedelson, Senior Partner and Joan Lewis-Heard, Senior Associate at SwedelsonGottlieb

It is a good day for the Bridgeport Community Association, a SwedelsonGottlieb client. Today escrow closed and this association was paid the sum of $147,375.65 for the attorney’s fees and costs the Association incurred to obtain the owners and their tenant’s compliance with the CC&Rs. For those of you that think that it cannot be done, read on. The Board and Management at this planned development association located in Valencia, California persevered and took the case through the trial court and appeal and recovered $147,375.65. And they did this because it was the right thing to do, despite all of the time, effort and money it cost the Association.

Continue reading "Homeowners Pay Bridgeport Attorney’s Fee Award of $147,375.65 " »

May 23, 2011

SwedelsonGottlieb Leads the Way in Rules To Address Hoarding

By Sandra L. Gottlieb, Senior Partner, SwedelsonGottlieb

Our firm's work with United Laguna Hills Mutual, a large master community association, is attracting some attention. Follow this link to an article from the Orange County Register. SwedelsonGottlieb assisted the association in crafting a new rule to deal with this association's serious hoarding problem. Among other things, the new rule defines when the line is crossed from harmless clutter to a hoarding problem that creates a fire and/or health hazard that must be dealt with. The association's efforts to address hoarding were also highlighted in a recent issue of Community Association Institute's Common Ground magazine.

If you are experiencing difficulty enforcing your governing documents when it comes to hoarding, contact us at 800.372.2207. Let us evaluate your hoarding issues and let you know the association’s options for dealing with this issue.

Sandra Gottlieb can be contacted via email: slg@sghoalaw.com

May 5, 2011

Lawsuit: Sheriff's Deputy Homeowner Unleashed Chinch Bugs Destroying Neighbor's Lawn

Blog posting by David Swedelson, Senior Partner, SwedelsonGottlieb

As community association attorneys, we are often asked to assist boards and management in dealing with disputes between homeowners. We have seen disputes over view obstructions, dog waste or barking, noise issues from hard surface flooring or too many parties. Usually, we are asked to referee what usually amounts to a war of words. Sometimes, tempers flare and one neighbor may take what they think is justice into their own hands. But infecting their neighbor's yard with insects is a new one. That's what one owner in Florida is accused of doing.

In a story reported by the Palm Beach Post, a Palm Beach County sheriff's deputy is being accused of using his training to thwart agro-terrorism to destroy his neighbor's yard with chinch bugs. The bug invasion, which destroyed the nearly one-acre yard in The Acreage, is one of numerous tactics Detective Terrance Senecal has used to harass his neighbors, according to a lawsuit filed this week in Palm Beach County Circuit Court. The Acreage sounds like the name of a planned development; wonder what the homeowners association is doing about this situation?

May 3, 2011

Dog Waste a "Growing" Issue

By David Swedelson, Senior Partner, SwedelsonGottlieb

There is an old saying that the three big “issues” at community associations are people, pets and parking. Some may disagree, but the fact is that pets are often an issue. And when it comes to pets, and specifically dogs, dog poop or waste is often at the top of the list. We often get calls or e-mails from managers or board members asking our advice on how to deal with residents who fail to pick up after their dogs or complaints regarding same. This is not something they teach in law school.

Recently, a disgruntled owner at one association we represent was so unhappy about the dog poop allegedly being left on the common area grass in front of her condominium unit that she took the poop and wiped it all over an association monument sign (we have no idea what she used as the scraping implement; we are hoping it wasn't her hands).

Continue reading "Dog Waste a "Growing" Issue" »

April 16, 2011

Community Association Rule Enforcement; Not An Easy Task, But It Needs to Be Done

By David C. Swedelson, Partner, SwedelsonGottlieb
This article was prepared for a recent program that David spoke at dealing with rule enforcement.

There is no disputing the fact that serving on the board at any community association is time consuming and can often become frustrating. You have a multitude of issues competing for your attention — whether it's adopting the budget, monitoring performance and renewing service contracts, insurance renewals, supervision/hiring and retention of employees or collecting delinquent assessments. In addition to running the association’s business, board members are also faced with the task of enforcing rules and regulations.

Continue reading "Community Association Rule Enforcement; Not An Easy Task, But It Needs to Be Done" »

April 11, 2011

Is a Kid’s Lemonade Stand a Prohibited Commercial Activity?

Post by David Swedelson, Partner, SwedelsonGottlieb

We are often asked to assist California community associations dealing with unauthorized homeowner commercial activities when prohibited by the association’s governing documents. Usually, the issue is whether the commercial activity will or is impairing the residential character of the community.

So, for example, we have been called upon to deal with a hair stylist, an employment headhunter, a psychologist, and other service-oriented businesses that had a number of clients and/or employees coming into a gated community or locked building. Once, we dealt with a refrigerator repair service where customers were coming into the association to drop off or pick up their refrigerator. Another time, it was an auto repair business being run out of a garage. And of course, lately we have been dealing with more then one marijuana growing facility. You get the picture.

But a lemonade stand? Heck, I remember having one of these in front of my house growing up, but I did not live in a community association, at least not then.

But consider the community in Palm Beach County, Florida that forced the closure of a lemonade stand that was being operated by neighborhood children. Here is the video of the news story that aired on television:


There is no question that the restrictions in any community association’s CC&Rs are an important part of community association living. Many owners choose to move into a particular association based in part on the restrictions, and they expect their association to enforce them. Owners do not want to see a car repair service, a burger stand or some other purely commercial activity taking place in front of or out of a home in their community of homes or condos, especially when that business will impair the residential character of the community.

But what about a lemonade stand? How about the sale of Girl Scout cookies? Is the lemonade stand really going to set a precedent? I don’t think so.

What do you think? Did this Florida community go too far?
Send your comments to David Swedelson, dcs@sghoalaw.com

March 15, 2011

Should Delinquent Condo Owners Lose Internet, TV Service?

By David C. Swedelson, Partner, SwedelsonGottlieb

Community Association Institute’s (CAI) Fast Track News Bulletin reports that Florida condominium association residents who are delinquent on their assessments could run the risk of losing their cable and internet service if a new bill passes.

According to the March 1, 2011, edition of the Orlando Sentinel, the legislation, which would go into effect July 1, 2011, would give condominium associations the right to cut off cable and internet service of residents who are 90 days overdue. In Florida, associations are already allowed to ban delinquent residents from common amenities such as pools, gyms and the like, and the bill would have cable and internet counted as common amenities as well. While the list of what’s considered common amenities seems to keep growing, this proposal makes it clear that associations will not have the power to shut off residents' water or electricity.

Continue reading "Should Delinquent Condo Owners Lose Internet, TV Service?" »

March 15, 2011

Locking in for a Lower Price: Long-Term Contracts

By Sandra Gottlieb, Esq.

Understandably, service providers such as cable or satellite dish companies will regularly seek long-term contracts of five years or more with homeowner associations. They explain that this is because their up front costs related to getting their systems set up within the association are significant, and they want to be reasonably sure that they can earn a profit.

Long-term contracts can provide potential cost savings to many homeowner associations, and a proper contract prepared by an attorney experienced in common interest development law can ensure that the association gets what it pays for. However, some boards of directors are unaware of provisions in their governing documents that may limit the board’s ability to enter into long-term contracts. Sometimes, CC&Rs or Bylaws will not allow the board to enter into any contracts with a term in excess of a certain number of years (usually one year) without the vote and approval of the members (usually a majority of the voting power). Some more recent CC&Rs or bylaws provide for certain exceptions for laundry room leases or contracts, cable television or telecommunication services.

Because contracting with common interest developments (condominiums, planned developments and stock cooperatives) is a regular practice with major telecommunications providers, they are aware that many governing documents will contain these kinds of provisions, and they should perform due diligence by reviewing governing documents prior to contracting with an association. However, this doesn’t always happen. If a provider fails to review the CC&Rs and the board is unaware of their restrictive CC&R provisions regarding long-term contracts, the stage is set for entering into a contract without the proper authority to do so. As you can imagine, this can result in quite a legal mess that must be cleaned up, and it places the members’ access to the provider’s services at risk.

If your association is considering entering into a long-term contract, let the attorneys at SwedelsonGottlieb assist you to ensure the association is properly protected. Contact us at 310-207-2207 today.

March 11, 2011

NRA Shoots Down Homeowner Association Gun Ban Plan

From Community Association Management Insider

A community in El Dorado County, California has historically allowed some sport shooting. However, when one board member wanted to change that, he started the process to change the governing documents to completely ban the discharge of firearms and air-guns and eliminate all target and other shooting throughout the gated equestrian community.

One member of the community, who is also a National Rifle Association (NRA) member, brought this issue to the attention of the NRA’s California attorneys. And they assisted him and other neighbors in defeating the attempt to do away with shooting in the community.

A group of 15 members attended the Board of Directors meeting to speak against the proposed changes to the governing documents. At the meeting they pointed out the many flaws in the proposed revisions, including that the revisions would inappropriately ban the discharge of BB guns, airguns, bows, and nailguns, because these devices discharge projectiles by means of compressed air or springs.

The members also pointed out to the Board of Directors that the proper procedure to implement a change to the governing documents had not been followed. Under the bylaws, proper procedure for amending the governing documents calls for the association's Revision Committee to first consider a proposal to revise the documents, then recommend items for change to the Board only if the committee finds the suggested change appropriate.

Finally, the member informed the Board of Directors that he had consulted with attorneys for the NRA and that if they wanted to push the revisions, the NRA was prepared to back him and the rest of the supporting homeowners all the way.

Acknowledging the NRA’s involvement, and recognizing their mistake, the Board of Directors referred the proposal back to the Revision Committee to make a recommendation for the proposed changes if the committee felt it was necessary. Based on the input from the protesting members, the Revision Committee found no reason to revise the current version of governing documents, so the proposed change was defeated.

This post by David Swedelson dcs@sghoalaw.com Comments?

March 3, 2011

Starlight Ridge South Homeowners Association v. Hunter-Bloor; Association Maintenance Easements; How Far Does The Association’s Maintenance and Repair Responsibility Actually Go?

By David C. Swedelson, Esq.

Many planned development community associations have built into their CC&Rs the obligation of the association to maintain property owned by some and often not all of the owners. Sometimes, they are called “Association Maintenance Areas” or “Association Easement Areas". Sometimes, there is no special name for the area, but the association's CC&Rs specify that the association will maintain a slope area or landscape area that benefits the association or the owners, typically for aesthetic reasons. And sometimes, disputes erupt over just how far the association’s maintenance responsibilities extend.

Continue reading "Starlight Ridge South Homeowners Association v. Hunter-Bloor; Association Maintenance Easements; How Far Does The Association’s Maintenance and Repair Responsibility Actually Go?" »

February 18, 2011

Is Annual Certification at Age-Restricted Communities Really Necessary?

By Sandra L. Gottlieb, Esq.

Our 55 and older age-restricted communities sometimes ask whether they are required to survey and certify that they comply with the 55 and older qualification standards (if you live in or are on the board of an age-restricted community, you likely know what this means), seeing as they have already surveyed and certified residents in units. They do not want to have to recheck and recheck, year after year, inasmuch as the owners are not getting any younger over time.

For those that are wondering what the heck we are talking about, the Fair Housing Amendments Act of 1988 (the “Act”) provides an exception for communities for older persons (55 and older), which allows restrictive occupancy without violating the Act by discriminating against families with children or against persons that are 54 years of age or younger. The FHA has been amended by the Housing for Older Persons Act of 1995 (“HOPA”). HOPA sets forth standards, which allows, if followed, the 55 and older communities to satisfy the exemption by completing the age restriction requirements.

55 and older communities must survey their residents every two years to ensure the 80% threshold requirement is met (units must be occupied by at least one person 55 and older). Failure to complete and confirm the age status of each resident in the community could, if the threshold fails, impair the ongoing exemption for the 55 and over housing exemption (meaning that they would lose the right to be an age-restricted community). Make certain that your survey questions are compliant with the law. Follow this link to view the requirements that should be followed, which are set forth at page 16327 in the first full paragraph in the third column.

If you have any questions concerning compliance, please do not hesitate to contact SwedelsonGottlieb at 310-207-2207 and speak to one of our attorneys, or email us at slg@sghoalaw.com.

January 5, 2011

Make 2011 a Great Year by Amending or Restating Your CC&Rs and Bylaws

You know you’ve been meaning to get around to it for a long time now. Your manager has probably been nudging the board as well, hoping that maybe this year will be the year your association decides to get rid of those outdated CC&R and Bylaw provisions, making everyone’s job a lot easier.

Amending your governing documents does not have to be a painful process. Some boards of directors will not even consider amendment, dismissing it out of hand as too time-consuming or too expensive with little chance for success. But if the board truly commits to the process and engages in an active marketing campaign to support the approval of the amendment by the required secret ballot vote, we find that our association clients are able to get some great amendments passed by their members, quickly and effectively.

What’s bothering you?

o Delinquent owners are not paying assessments, but they are collecting rent from tenants. Let SwedelsonGottlieb prepare an “Assignment of Rents” provision for your CC&Rs, allowing the association to demand rent directly from the delinquent owner’s tenant.

o Too many leased units at the association. Let SwedelsonGottlieb prepare a rental restriction for your CC&Rs, restricting the ability of a new owner to lease for a year or two or restricting leased units to a certain percentage of all units (many of our clients find 25% to be reasonable). This will help to protect the resident-owner character of your association.

o Little or no director qualifications exist. Let SwedelsonGottlieb prepare an amendment to your Bylaws setting forth reasonable director qualifications such as being a member of the association, being current in payment of assessments, and not being involved in adverse litigation with the association.

o Not sure who is responsible to repair or replace some parts of the development. Let SwedelsonGottlieb prepare amendments to your CC&Rs clarifying maintenance responsibilities.

o That one incredibly confusing provision that causes fights all the time. You know the one. Let’s get rid of it and replace it with something clear and concise.

Do you have many issues that arise because of governing documents that are out of whack with current state statute and best practices for homeowner associations? You may wish to consider a full restatement of your CC&Rs and Bylaws through our Amend!® program. Actually, most associations will benefit greatly from restatement every fifteen years or so. We offer reasonable flat fees for several options of service.

Let SwedelsonGottlieb know how we can help. Contact Alex Noland, Esq. or legal assistant Mark Petrie by email or at 310-207-2207 today.

November 19, 2010

What are Homeowners’ Rights Regarding Service, Companion & Therapy Dogs?

By W. Alexander Noland, Esq., SwedelsonGottlieb Associate Attorney

There tends to be a great deal of confusion over service, companion and therapy animals, and, particularly, service, companion and therapy dogs. While the Americans with Disabilities Act does not generally apply to community associations unless an association opens its common areas and recreational facilities to the general public (e.g. allowing people other than residents and their guests to use the association’s pool, rent the association’s clubhouse or take lessons at the association’s tennis court), state and federal fair housing laws do apply to community associations. Association boards and managers should be aware that homeowners do have the right, subject to certain restrictions, to bring service, companion and therapy dogs into their separate interests, even when those dogs violate pet restrictions contained in an association’s governing documents (e.g. keeping or bringing the dog into the association’s development violates restrictions on the number of dogs, dog weight limits or dog breeds).

Continue reading "What are Homeowners’ Rights Regarding Service, Companion & Therapy Dogs?" »

October 22, 2010

How to Deal With A Request for Authorization to Install Solar Panels

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

These days, going “green” is all the rage. So, it is no surprise that lately we are getting more and more inquiries from boards wondering how they should respond when homeowners request authorization to install solar panels. If the owner wants to install the solar panels on the common area, such as the roof of a condominium building, the answer is easy: “NO.” Owners do not have the right to install any type of modification on the common area, and solar panels are no exception.

However, it is a different story when owners request permission to install the solar panels on their own roof. As you might suspect, the answer is more complicated. Regardless of what the association’s governing documents may say, Civil Code Sections 714 and 714.1 limit the ability of a homeowners association to restrict the installation of solar panels within a separate interest. Civil Code Section 714 says, among other things, that a community association cannot enact a covenant, restriction or condition which limits or restricts an owner’s ability to install a solar energy system. In fact, any such covenant, restriction or condition is considered “void and unenforceable”. If homeowners want to install solar panels on their separate interest (meaning on their own home or yard), they must submit an architectural application as would be required for any other exterior improvement or modification. However, because of the limitations of the Civil Code, the architectural committee (or board) cannot deny the application for solar panels simply because solar panels do not fit in with the aesthetics of the development.

Continue reading "How to Deal With A Request for Authorization to Install Solar Panels" »

September 28, 2010

Community Associations May be Obligated to Accommodate a Disabled Resident, But that Does Not Mean that the Accommodation Can Negatively Impact Other Residents

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 24, 2010

The Owner Put a Sukkah Where?

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?" »

September 24, 2010

Owners in Zero Lot Line View Protected Communities May Have No Reasonable Expectation of Privacy

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" »

July 19, 2010

Residents Are Not Happy With Their Neighbor's New Green And Purple Paint Color Scheme; Not Much They Can Do About It! If Only They Lived In A Community Association.

I read with interest an article that appeared in the Los Angeles Times addressing a La Crescenta neighborhood's uproar over one owner's neon green paint job. Follow this link to read/download the LA Times article.

One neighbor was quoted as saying that the green paint color was “completely inconsistent with the neighborhood. We have a real concern it's going to lower property values.”

Unfortunately, there are no standards in this area, and it's unlikely that anyone can do anything about the neon green. This would likely not be the case if this home were located in a planned development where paint colors are controlled.

I often hear people complain, especially those who are involved in the community association industry, that they would never live in a condominium or planned development because of all of the restrictions and problems. What they fail to realize is that one of the great benefits of living in a community association is the fact that there are restrictions, such as the choice of paint colors or where you cannot park your trailer or motorhome. Most people can live with those restrictions, and if you can't, you can live in the neighborhood with neon green homes and 40 foot trailers parked on the street in front of your home.

Here is another relevant article on the subject.

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June 10, 2010

Who is Responsible for Heating/Air Conditioning Ducts and Other Common Area Elements? It is Not That Complicated!

One of the more difficult and confusing issues that boards and association management often have to deal with is determining who is responsible for the maintenance and repair of common area plumbing, ventilation and other utility components, especially those that serve only one unit. Even attorneys sometimes get it wrong and believe that merely because the pipe, duct or wiring serves only one unit, the affected owner is responsible for same. Just because a common area component serves or benefits only one unit does not by itself make that component that owner’s repair and/or replacement responsibility.

Continue reading "Who is Responsible for Heating/Air Conditioning Ducts and Other Common Area Elements? It is Not That Complicated!" »

June 10, 2010

Who is Watching Your Pool?

The kids are getting out of school for the summer, and the weather is heating up. This will mean that there will be more residents and their guests utilizing community association swimming pools. Who is watching your pool? Do you have lifeguards or pool monitors? Have you considered the difference? Do you know the difference? Alex Noland, an Associate Attorney at SwedelsonGottlieb, has written an article on this subject which was recently published in the O.C. View, the bi-monthly publication of the Orange County Chapter of the Community Associations Institute. Follow this link for a copy of the article.

May 28, 2010

California Appellate Court Rules that a Developer Cannot Force HOA to Arbitrate Defect Claims Based on a Provision in the CC&Rs

By Alyssa Klausner, SwedelsonGottlieb Senior Associate

In the case of Villa Vicenza Homeowners Association V. Nobel Court Development (follow this link to see the entire decision), the developer of a condominium project recorded a Declaration of Covenants, Conditions and Restrictions (CC&Rs) which required a homeowners association to arbitrate any construction defect claim the association might have against the developer. The Court ruled that the CC&Rs are not an effective means of obtaining an agreement to arbitrate a homeowners association's construction defect claims against a developer.

The basis of the Court’s decision was that the recorded CC&Rs, standing alone, are not a contract between the developer and the homeowners association, which only came into existence after the CC&Rs were recorded, and therefore there has been no showing the association entered into a binding arbitration agreement.

We have represented several associations that have had to deal with this issue, and we are pleased to have an appellate court decision confirming that such provisions in CC&Rs are not enforceable. If you have any questions regarding how this case impacts your association or about defect cases in general, please contact Alyssa Klausner, Esq. at (310) 207-2207, Ext. 205.

April 13, 2010

"Not by the Hair of my Chinny-Chin-Chin!"

You may remember the three pigs’ response to the wolf when he demanded entry into their homes in the old children’s story.

Unfortunately, we have seen some cases where a few homeowners seem to consider their homeowners association to be a “wolf” and will not cooperate with the association’s reasonable requests to enter their property when necessary in order to perform the association’s duties under the association’s governing documents. Far from being the bad guy in the story, the association often needs to gain entry in order to perform tasks that directly benefit the individual owner, as well as the association in general. Inspection of water leaks, mold testing, sound attenuation testing, and inspection for and/or repair of construction defects are just some examples. Even though the association’s right to do this may be explicitly spelled out in the association’s governing documents, some homeowners refuse to allow the association entry.

In some cases, a lawsuit must be filed, seeking a court order to allow entry. Attorneys’ fees and costs may be awarded to the association, in addition to the cost for a locksmith, which may become a judgment lien against the owner’s property. And all of these costs could have been avoided by the owner simply opening the door!

Most Declarations of Covenants, Conditions and Restrictions (CC&Rs) include a basic “right-of-entry” provision, usually with additional provisions for emergencies. If your association lacks such a provision, propose to amend your CC&Rs accordingly, and save yourself a lot of huffing and puffing.

April 1, 2010

A Highly Unusual Request to Amend CC&Rs - to Allow Only Ferrets!

We recently received an interesting request from a board of directors regarding amending the pet provision in their Declaration of Covenants, Conditions and Restrictions. Apparently, many members of the association have a distinct love of ferrets. Following is the language we developed for this association...

Continue reading "A Highly Unusual Request to Amend CC&Rs - to Allow Only Ferrets!" »

February 23, 2010

What We Learned at CAI's 31st Annual National Law Seminar in Tucson, Arizona

Despite the wind, rain and cold weather that followed us from Southern California, SwedelsonGottlieb attorneys David Swedelson, Stephanie Rohde and Alyssa Klausner recently attended the 31st Annual CAI National Law Seminar in Tucson, Arizona. We
have written an article about what we learned from this excellent seminar; follow this link for a copy of the article.

November 5, 2009

What Makes a Rule Reasonable or Unreasonable?

We are often asked by Boards about what is a reasonable rule. The answer is that I know it when I see it. We prepared an article that addresses this very issue. Click here for that article, "What Makes a Rule Reasonable or Unreasonable? I Know It When I See It!" By David C. Swedelson, Senior Partner of SwedelsonGottlieb.

November 5, 2009

No, You Cannot Adopt a Rule that is More Restrictive than the Provisions of the Association’s CC&Rs

Knowingly or unknowingly, sometimes boards adopt rules which are in conflict or more restrictive than the association’s CC&Rs. For example, they make specific rules regarding prohibitions on the installation of washing machines when the CC&Rs are silent on the matter. Boards sometimes prohibit hard surface flooring when this is likewise not covered by their association’s CC&Rs. We sometimes see rules that limit the number of or size of animals that homeowners are able to maintain when this is likewise not covered by the association’s CC&Rs. Sometimes, these rules end up in litigation, especially when the board tries to enforce same. Often the board of directors will argue that the court must defer to their discretion when they are performing their duties. While usually the courts will defer to the board of directors when it comes to decisions covered by the association’s governing documents, this is not true when the board has exceeded its authority.

Such was the case involving an association in Orange County, California, where the board decided they were not going to make homeowners “trim” their palm trees to eliminate a view obstruction and made a rule regarding this even though the association’s CC&Rs prohibited any view obstructions from landscaping. Firm attorneys David C. Swedelson and Stephanie M. Rohde have prepared an article entitled “Decisions of Boards of Directors Regarding Enforcement of Governing Documents Cannot Usually Be Second Guessed Unless the Decision is More Restrictive than the CC&Rs.” Click here for a PDF copy of this important and timely article.

June 10, 2009

Homeowner Association is Not Liable for Unforeseeable Injuries Caused to an Owner by a Tenant's Dog

Chee v. Marina Seagate Condominiums, (2006) 143 Cal.App.4th 1360, 50 Cal.Rptr.3d 40.

Lila Chee (“Chee”) is a 71-year-old resident owner of a condominium at the Marina Seagate condominium complex. She was allegedly injured when a Jack Russell Terrier owned by Olga Kiymaz, at the time a tenant in the condominium next door, ran out of Kiymaz’s unit, unrestrained by a leash. The dog jumped on Chee, allegedly causing her to fall and sustain numerous injuries. Kiymaz rented the condominium from unit owner Jerome Brown. Chee filed a second amended complaint against Brown, the Marina Seagate Homeowners Association (“Association”), and others. Chee brought Brown and the Association (and Brown’s property managers who rented the unit to Kiymaz) into the lawsuit after Kiymaz filed for bankruptcy and was dismissed from the action.

Continue reading "Homeowner Association is Not Liable for Unforeseeable Injuries Caused to an Owner by a Tenant's Dog" »

January 27, 2009

COURT ORDERS HOMEOWNER TO LOWER HEIGHT OF HOME

When an association discovers that an owner has made substantial alterations or modifications to their home that were not approved (often after the work has been done and a neighbor complains), we often hear board members or community association managers suggest that a judge is not going to make the homeowner remove an extensive modification of a home just because that modification violates the Association’s Governing Documents. While that is certainly a consideration that a court must make, we received a report (in the Daily Journal legal newspaper) that one judge did the right thing and ruled in favor of the Association under these circumstances.

Continue reading "COURT ORDERS HOMEOWNER TO LOWER HEIGHT OF HOME" »

October 31, 2008

Political Signs and Community Associations in California

Early voting is underway and, as expected, we have received calls complaining about political signs. You may be getting questions or comments about sign regulation in your communities, so we thought it would be a good idea to let you know what goes, and what does not, in community associations with regard to political signs. Some people assume that there is no way that community associations can regulate political signs because prohibiting signs would violate a resident's right of free speech under the First Amendment to the Constitution. While there is some validity to this assumption, it is not entirely correct in the community association context.

It is common to have sign regulation in community associations, particularly with respect to “For Sale” signs. Civil Code sections 712 and 713 make any blanket prohibitions void. While owners can have these signs on their property, they are not entitled, for example, to post these signs on the common area.

The question, then, is whether there is a distinction between “For Sale” signs and political signs, considering the fact that political signs seem to have more to do with free speech than "For Sale" signs. When analyzing government regulation of speech, the courts often distinguish between "commercial speech" and other types of speech, and find that commercial speech is not entitled to the same level of protection as other types of speech. But does that matter in a community association?

The answer is that pursuant to Civil Code Section 1353.6: The governing documents, including the operating rules,
 may not prohibit posting or displaying of noncommercial signs, 
posters, flags, or banners on or in an owner's separate interest,
except as required for the protection of public health or safety or 
if the posting or display would violate a local, state, or federal 
law.

Follow this link to see the entire code section, including what constitutes a sign.

While there are no court decisions in California on this issue, it is interesting to see what court decisions have come down in other states.

In Kansas, the legislature passed legislation which makes it illegal for neighborhoods to adopt restrictive covenants prohibiting political yard signs. David Hudson, a First Amendment scholar at Vanderbilt University, has done research to cast doubt on the legitimacy of such laws. He states: “The First Amendment generally protects people only from government interference with speech.” Mr Hudson cited a Pennsylvania court ruling which stated that an association did not violate the First Amendment by removing political signs in accordance with the association’s declaration prohibiting the posting of signs at the individual units. The judge included the following statement in the ruling:

The courts of the Commonwealth have vigorously defended the rights which are guaranteed to our citizens by both the Federal and our Commonwealth’s constitutions. One of the fundamental precepts which we recognize, however, is the individual freedom to contractually restrict, or even give up those rights. The homeowners challenging the sign prohibition contractually agreed by the provisions in the Declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on their property.

Another significant case was decided in New Jersey. In a ruling that could have implications beyond New Jersey, in 2007 the New Jersey Supreme Court upheld the right of homeowners’ associations to restrict the posting of political signs and other forms of constitutionally protected speech, as long as the restrictions are not “unreasonable or oppressive.

In a unanimous decision, the Court ruled:

We conclude that in balancing plaintiffs’ expressional rights against he association’s private property rights, the association’s policies do not violate the free-speech and right-of-assembly clauses of the New Jersey Constitution.

So, what’s the best way to deal with the issue?

We advise that when dealing with any signs, consider the Civil Code as to size, etc. and location, and if the sign is placed in their window or on their property, then it must likely be permitted.

On the other hand, a mannequin dressed to look like a political candidate hanging from a noose (as was the case in West Hollywood until governmental pressure convinced the owner that it should be removed) is not a “sign” that must be permitted.

In the meantime, we urge you all to exercise your right to vote and let your preferences be known in order to fully participate in the electoral process.

October 30, 2008

Associations Must Act Timely and Decisively to Enforce Covenants

Associations Must Act Timely and Decisively to Enforce Covenants

This summary of a recent Court of Appeals decision was published in the October 2008 edition of the Community Association Law Reporter published by Community Associations institute. What do you think of the Court's decision?

Pacific Hills Homeowners Association v. Prun, No. G038244, Cal. App. Ct., March 20, 2008

Covenants Enforcement: If an association does not act timely and decisively in enforcing covenants, then the association may face penalties if the dispute goes to court.

Jon and Linda Prun live in a planned community in Mission Viejo, Calif. Their property is subject to a declaration of covenants, conditions, and restrictions, which is enforced by the Pacific Hills Homeowners Association ("association"). The declaration requires that prior written approval from the association's architectural committee is needed before construction of any improvement, including a fence or wall, can commence. The association also adopted architectural guidelines that limit fences to six feet in height unless the fence is within 20 feet of the front property line, in which case the maximum height is three feet.

Continue reading "Associations Must Act Timely and Decisively to Enforce Covenants " »

December 23, 2000

AB 2736 Architectural Review

New Procedures Apply To The Adoption Of "Operating Rules"

The Davis-Stirling Common Interest Development Act was amended effective January 2003 by adding Civil Code Sections 1357.100 through 1357.150 which require that certain rules and regulations of an association defined in the Civil Code as "operating rules" satisfy specified criteria before that operating rule becomes effective. For certain categories of rule changes listed in the Civil Code, the board of directors of an association must give its members at least 30 days’ notice of a proposed rule change prior to adopting the rule change. The notice must include the text of the rule change and a description of the purpose and effect of the rule can; however, rules adopted for emergency purposes are exempt from the notice requirements. Once the 30 day notice period expires, the Board may adopt the proposed rule change. The Board must notify the members soon as possible after the rule has been and no more than 15 days after making the rule change. Once enacted, operating rules subject to the requirements of Civil Code § 1357.100 may be reversed by a majority of a quorum of the members if at least 5% or more of the voting power of the association petitions the board for a special meeting for the purpose of reversing an operating rule (distinguished from a common area maintenance or repair policy, for example) within 30 days after the members are notified of the enactment of the rule change. This 30 days period was adopted to allow the homeowners to challenge the rule change, but there is no requirement that the owners be told that they have the right to challenge the proposed rule.

Currently, under Section 1357.120, a rule that governs one or more of the following subjects is subject to the above procedure:

  1. Use of the common area or of an exclusive use common area.
  2. Use of a separate interest, including any aesthetic or architectural standards that govern alteration of a separate interest.
  3. Member discipline, including any schedule of monetary penalties for violation of the governing documents and any procedure for the imposition of penalties.
  4. Any standards for delinquent assessment payment plans.
  5. Any procedures adopted by the association for resolution of assessment disputes.

Beginning January 1, 2005, AB 2376 adds an additional category of rules subject to the above described rule adoption procedure.  Specifically, any procedures for reviewing and approving or disapproving a proposed physical change to a member’s separate interest or to the common area will now be subject to the rule-adoption procedures set forth in Sections 1357.130 and 1357.140 of the Civil Code.

In addition, if an association’s governing documents require that an owner obtain the approval of the association before making a physical change to the owner’s separate interest or to the common area, the association must now satisfy the following requirements in reviewing and approving or disapproving a proposed change.  The requirements are set forth in newly added Civil Code Section 1378.  The minimum requirements that an association must satisfy are as follows:

  1. The association shall provide a fair, reasonable, and expeditious procedure for making its decision.  The procedure shall be included in the association’s governing documents, such as the association’s rules and regulations or CC&Rs.  (Remember, pursuant to the amendment to Civil Code Section 1357.120, if this procedure is adopted as an operating rule, the procedure will be subject to Civil Code Section 1357.130 and 1357.140).  The procedure shall provide for prompt deadlines and shall state the maximum time for response to an application or an owner’s request for reconsideration by the board of directors.
  2. A decision on a proposed change shall be made in good faith and may not be unreasonable, arbitrary, or capricious.
  3. A decision on a proposed change shall be consistent with any governing provision of law, including, but not limited to, the Fair Employment and Housing Act, commencing with Section 12900, of Division 3 of Title 2 of the California Government Code.
  4. The decision on a proposed change shall be in writing.  If an application for a proposed change is disapproved, the written decision must include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board.
  5. If a proposed change is disapproved, the applicant is entitled to reconsideration by the board of the association that made the decision, at an open board meeting.  Section 1378 provides that  reconsideration of a decision is not required if the decision is made by the board of directors or a body that has the same membership as the board, at a meeting that satisfies the requirements of Civil Code Section 1363.05 (the Common Interest Development Open Meeting Act).  Section 1378 also provides that reconsideration by the board shall not require dispute resolution within the meaning of the new Civil Code Section 1363.820, described below.

New Civil Code Section 1378 is not intended to authorize a physical change that is prohibited by an association’s governing documents or governing law.

Section 1378 also requires that an association provide its members with notice of any requirements for association approval of physical changes to property on an annual basis.  The notice must describe the types of changes that would require the association’s approval and shall include a copy of the procedure used by the association to review and approve or disapprove a proposed change.

AB 2376 also amends Civil Code Section 1373 pertaining to common interest developments that are limited to industrial or commercial uses by zoning or by a declaration of covenants, conditions and restrictions.  Section 1373 exempts these types of common interest developments from compliance with certain provisions of the Davis-Stirling Common Interest Development Act such as the requirement to distribute to the members on an annual basis a pro forma operating budget.  The amendment to Civil Code Section 1373 will exempt common interest developments limited to industrial or commercial uses from compliance with Section 1378, described above. 

April 16, 2000

Satellite Dish Installation Law At Center Of Dispute

Although the FCC regulations which allow a owner to install a satelite dish on their property has been the law for several years now, it is still widely misunderstood. The attached PDF story from the Ventura County Star shows just how misunderstood this law is. A owner at a condo association cannot, without the associations approval, place a satellite dish on the common area and that is exactly where this disgruntled owner placed his. What do you think?Download ventura_county_star__ventura_010505.pdf

April 3, 2000

Owner of Record

Download owner_of_recordarticlefnl.pdf

February 28, 2000

FCC Bans Exclusivity Contracts


Prepared by Sandra L. Gottlieb, Esq.
SwedelsonGottlieb

In the mid-90’s, The Federal Communications Commission (“FCC”) established rules known as the Over the Air Reception Devices, known by the acronym OTARD, which preempts provisions in many governing documents that require an owner to obtain approval before installing a satellite dish. The public policy part of the Telecommunications Act of 1996 (the “Act”) was the vehicle by which the FCC guaranteed that homeowners had reasonable access to new communication technology available to American consumers and provided that such access takes priority over private restrictions based on aesthetics. That said, however, the Act did not require associations to allow access to association common areas, but rather left the decisions concerning associations’ common areas, subject to statutory and governing document requirements, to the boards of directors of those associations. The common area at a condominium association is likely any area outside of the airspace of an owner’s unit or their exclusive use patio or balcony.

Community association boards usually have the discretion to enter into an exclusive cable service contract with a particular telecommunications provider in order to provide that programming to the residents at a volume discount price. Cable providers often insist on exclusivity (meaning that no other providers are permitted to offer programming to residents) prior to committing to make upgrades at an association.

On November 13, 2007, the FCC issued an order banning exclusivity contracts between cable operators (and other multi-channel video programming distributors) and multiple dwelling unit developments.
The definition of multiple dwelling units developments includes condominiums, cooperatives, and communities of single family homes. The order from the FCC has not become a published federal regulation as it is still being considered whether it should apply to direct broadcast satellite services and private cable operators, not using local rights of way. This action by the FCC is consistent with its belief that communication providers (internet, wireless and cable) should be subject to the greatest possible competition in providing their services, and that consumers generally benefit from that competition.

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If you have an exclusivity clause in your cable or video programming distribution contract, this ban will not necessarily terminate the contract, but it may make certain (exclusivity) provisions of that agreement unenforceable. The impact of this ban on community associations is not certain at this point. The benefit of an exclusivity provision in the contract is that it sometimes enabled the association to obtain a better rate for the cable/video programming services, installation of fiber optics, cabling, free receivers, etc. Without an exclusivity clause, however, it is likely that any discounts will expire with contract renewals.

We will keep you advised of any new developments about this new FCC order. If your association is under contract with a video programming provider or distributor, you should review the provisions of the contract to determine if there is an exclusivity clause and, if so, what the effect on the contract will be once the FCC order becomes an effective federal rule published in the Code of Federal Regulations. If you require our assistance, please contact our office. In addition, for more information please see CAI's political information web site.