HOA Law Blog

Blog posting by David Swedelson, Partner Swedelson & Gottlieb; 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, Swedelson & Gottlieb

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 Swedelson & Gottlieb 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.