HOA Law Blog

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

Many 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.

Blog Post by David Swedelson, Condo Lawyer and HOA Attorney, Partner at SwedelsonGottlieb, Community Association Attorneys

All too often, we hear from managers and board members who ask us to help interpret what the contractor was talking about when he referred to missing flashing, the damage to the fascia board and some dry rot that was found when the wall and ceiling were opened up. Or, we hear from the contractor that tells us he does not know what to inspect or fix, as all he was told was to look at the "hangy thing." Contractors do speak their own language, much like lawyers that speak legalese. It is important to understand the terms that contractors use so that you can understand what they are talking about and are better able to communicate the problem.

Bill Butler from PrimeCo Painting and Construction compiled such a list with definitions of some of the common elements of a typical building structure. That way, when the contractor says soffit, you will know that he is talking about that “hangy part” of the building that is found frequently over patios or entries.

Continue reading "What The Heck Is Flashing, Or A Fascia Board, Or A Joist Hanger? Do You Speak Contractor?" »

Blog post by David Swedelson, Condo Lawyer and HOA Lawyer; Senior Partner at SwedelsonGottlieb, Community Association Attorneys

I recently read an interesting article in the newspaper regarding structural defects. The article entitled “Home Structural Defects Are Rare But Can Be Costly” provides good advice for both homeowners and condo owners and associations. Follow this link to read the article.

The article points out that new homes are rarely perfect. “Houses are giant puzzles with hundreds of parts, manufactured at different locations and carried to the building site. And try as they might to put together a flawless product, builders and the numerous subcontractors don’t always get things right.” This is so true.

Over the last 30 years that I’ve been representing condominium and homeowners associations, I have rarely seen a condominium unit or homes in a planned development where there haven’t been some “defects.” And as a consequence, SwedelsonGottlieb has filed and successfully resolved dozens of construction defect cases over the years. And as the article points out, most of the defects we find don’t relate to structural failures.

Continue reading "Condo and HOA Structural Defects Are Rare, But Can Be Costly" »

by Sandra L. Gottlieb, Esq. and Priya Aggarwal, Esq., Los Angeles HOA Attorneys

On occasion, we deal with slope and water runoff issues, as a result of poorly installed drainage or otherwise, between neighboring associations, a sub and a master association, or with owners. We have found that it is a common misconception that the law provides that where neither party has done anything to specifically cause or exacerbate the water runoff, the upstream property owner has a responsibility to take care of any damage suffered by the downstream property owner as a result of the runoff. The concept that the upstream property owner is strictly liable for the runoff of water emanating through or by its property is not correct. This misconception appears to be the result of confusion between the traditional rule of liability with the current law on liability as it relates to real property matters.

Continue reading "Who is Responsible for Water Runoff, The Upstream or Downstream Owner?" »

By David Swedelson, Partner, SwedelsonGottlieb

So here is the question. Is a provision in the CC&Rs requiring that an association submit claims against the developer for construction defects to binding arbitration unconscionable and therefore unenforceable? This is what the Court of Appeal found in the Pinnacle case, holding that such provisions are procedurally unconscionable because neither the individual purchasers, nor the association, have any alternative but to accept the terms of the CC&Rs, and substantively unconscionable because they are unfair and one-sided.

This case is now before the California Supreme Court, and we are awaiting its decision.

Continue reading "Is a Provision In a California Community Association’s CC&Rs Requiring That Construction Defect Claims Against The Developer Be Adjudicated Via Binding Arbitration Unconscionable And Therefore Unenforceable? Yes Says the Court Of Appeal" »

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

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

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

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

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

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

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

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

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

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

The Daily Journal reports that Los Angeles County Superior Court Judge Madden recently ruled on the monthly fee that owners at Marina Pacifica Homeowners Association (located in Long Beach, California) paid to a developer. The Judge found that the fee constituted a "transfer fee" that was a violation of California Civil Code sections 1098 and 1098.5.

California Civil Code sections 1098 and 1098.5 took effect on January 1, 2009, eliminating real property "transfer fees," particularly targeting fees written into the recorded CC&Rs at some California community associations. These fees are not the fees charged by an association or its managing agent for providing documents and other information as part of Civil Code Section 1368; these transfer fees were typically being paid to the original developer. Since the legislation’s enactment in 2009, we have not seen any court cases, at least until now.

Continue reading "Judge Rules That Transfer Fees to Original Developer Not Enforceable pursuant to California Civil Code Sections 1098 and 1098.5" »

Blog post from David C. Swedelson, Condo Lawyer, HOA Attorney and Senior partner SwedelsonGottlieb

We are often asked how a building contractor's poor workmanship was approved by the City's inspector from the Department of Building and Safety. Now we know one reason; some inspectors are taking bribes to look the other way or not even inspect.

The LA Times reports that Raoul Germain, a City of Los Angeles building inspector, has been sentenced to 21 months in prison after pleading guilty to taking bribes. Germain was caught as part of an FBI sting operation in which he approved work in exchange for thousands of dollars in bribes. The Times notes that that in some cases, Germain never visited the construction sites.

In addition to Germain, another city inspector has pleaded guilty to taking bribes, and two more employees of the Department of Building and Safety have been fired in connection with the investigation.

To read the LA Times article, click here.

The California Contractors State License Board (CSLB) recently issued a news release regarding their recent sting operation, which caught several unlicensed contractors attempting to perform work for more than $500. Unlicensed contractors tend to prey on senior communities such as the Sun City retirement community, which assisted with the sting operation. Boards of directors and managers of senior communities should be especially vigilant and ensure due diligence is performed when hiring contractors. See the news release for a list of important tips and red flags when hiring contractors.

Check contractors' status with the CSLB here.

By David C. Swedelson, SwedelsonGottlieb

Effective January 1, 2011, California law imposes new requirements and notice procedures for contractors who are serving and recording mechanic’s liens. California Civil Code § 3084(a)(6)-(7) now mandates that a valid mechanic’s lien must contain the following information in addition to what the law currently prescribes:

• Particular language in 10-point boldface type entitled “Notice of Mechanic’s Lien” as set forth precisely in the statute, and

• Affidavit of proof of service on the owner or reputed owner.

We expect that contractors will use old forms, or commercially prepared forms that may not comply with the new law. The law makes clear that a failure to meet the requirements would cause the mechanic’s lien to be unenforceable as a matter of law.
Contractors often fail to comply with the law as it relates to mechanic's liens. Often, they name the wrong party as the owner (the association does not usually own the common area), and these new changes will further frustrate some contractors' efforts to lien the property at California condominium associations.

These amendments also affect the recordation of a lis pendens for a suit to foreclose a mechanic’s lien. The lis pendens, recorded as an extra step to secure the contractor's purported obligation, is now legally mandatory beginning January 1, 2011 under Civil Code § 3146. The lis pendens must be recorded within 20 days after filing of the foreclosure action, and we suspect that some contractors and their attorneys will miss this requirement. You can read this new legislation here.

If your association is served and/or receives a mechanic’s lien, it is best that you confer with legal counsel who can determine, among other things, whether the lien is valid and enforceable.

For more information or to consult regarding a mechanic's lien or other California common interest development issue, please contact SwedelsonGottlieb Senior Partner David C. Swedelson directly at dcs@sghoalaw.com.

By Sandra L. Gottlieb, Esq. and Stephanie Rohde, Esq.

Now that the rainy season is soon upon us, many associations have been scrambling to get their association roofs repaired or replaced to avoid water intrusion issues (leaks). In every roofing contract that we have prepared or reviewed, the most important issue is the warranty.

A roofing contract should include two types of warranties, the manufacturer’s warranty and the roofing contractor’s warranty. Typically, the manufacturer’s warranty will cover a long period of time (10-20 years), and may include materials and possibly workmanship, but generally excludes “incidental and consequential damages.” This means if something goes wrong (and the new roof leaks), the manufacturer will cover the work that was performed under the contract (i.e., it will pay to replace the roof, but not the cost of labor) but will not do anything about the resulting damage from the leaks, like the damaged ceiling, walls, furniture, carpet, etc. This is an especially important consideration and issue in a roofing contract, where poor workmanship can result in extensive water damage and/or mold intrusion throughout both the common area and individual units. And in our experience, workmanship is usually the source of the leaks, not the material.

Continue reading "Roofing Contracts: What Kind of Warranty Do You Need?" »

Where a homeowner paid an unlicensed contractor for landscaping work at his home, his knowledge that the contractor was not licensed when work commenced did not bar an action for full reimbursement under Business and Professions Code Sec. 7031(b), and the homeowner was entitled to recover the total amount paid even though the contractor was licensed during a portion of the work. The homeowner was also entitled to recover payments for materials retained by him, in addition to payments for labor.

This applies to California Community Associations who hire contractors and then find out they are not licensed. This may sound unfair, but the penalty is designed to discourage unlicensed contractors from performing contracting work.

Click here for the full text of the Alatriste v. Cesar's Exterior Designs, Inc. case recently decided by the California Court of Appeal.