Articles Posted in CC&R and Rule Enforcement

By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

In a blog post by Donna DiMaggio Berger, a Florida Community Association Attorney, she discuses exceptions or variances granted to owners. Apparently in Florida they deal with some of the same issues we do. As Donna states, many boards want the leeway to grant exceptions when it comes to certain restrictions in their association’s CC&Rs, such as leasing or altering units or exclusive use common area, performing maintenance and allowing certain types of architectural changes or improvements. We see the same thing here in California.

But often boards grant exemptions or variances without thinking about all of the ramifications. As Donna states, what many boards fail to understand is that any time an exemption or exception is granted, they are creating a precedent which may render their restrictions unenforceable in the future.
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By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

smoking_ban_-_Google_Search.pngI was alerted to a proposed smoking ban in apartments and condominiums by the City Council in Culver City, California. Follow this link to read an article from the Culver City Observer that tells us that the City Council directed the City Staff to prepare a draft proposed ordinance that would ban smoking in any complex of 2 or more units.

We have reported previously about cities banning smoking in multiunit housing – see our prior posts here and here. If a city can ban smoking, so can a condominium or homeowners association. In fact, some of our clients are moving forward with smoking prohibitions in their CC&Rs and have been able to successfully enforce the prohibitions without having to file any lawsuits.

By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

Dance_Craze__In_China__Retirees_Raise_a_Ruckus_by_Getting_Down_-_Google_Search-1.pngWe often get calls from Board members and managers asking us to help them with noise problems. Usually, the complaints involve hard surface flooring, loud stereos or TVs, prolonged or loud dog barking, or a tenant who plays a musical instrument for several hours a day, especially on the weekend or in the evenings.

In China, which is apparently experiencing a condominium-building boom, they have a different kind of noise problem: public dancing to loud music. These aren’t raves; they’re daily occurrences. And the rowdy crowd isn’t twenty-something millennials. They’re grandmothers, women in their 50s and 60s, about 100 million of them. Even in China, this is not an inconsequential number. This was the subject of a recent article in the Wall Street Journal.

The dancing – whether it’s traditional, patriotic, or China’s version of rap or hip-hop, is a problem for people who choose to relax in quieter ways, and whose quiet enjoyment of their units is disturbed. Some paid extra for their units for the peace and quiet. Terms to buy a condo can be stiff in China. For example, in one complex, a $300,000 unit required 50% up front, and the balance within three years. These owners are arming themselves with decibel meters, and working to get laws passed to create “Quiet Zones”.
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By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

brown_grass_at_California_state_capitol_-_Google_Search.pngEarlier this year, I attended a legislative action day in Sacramento. I was surprised by the number of bills being proposed to deal with the drought, with many of them focused on community associations. As the state of emergency with our water supply in California drags on, state and local governments continue to get more aggressive with addressing water use. They do not want us using all that much. And they do not care if an owner’s lawn turns brown.

I recently attended a meeting at an association in Santa Barbara. The association’s large expanse of green grass was turning brown. Turns out that Santa Barbara has issued strong ordinances regulating the watering of lawns; the association can only water their grounds for ten minutes, once a week.

screen-capture-27.pngHave you seen SwedelsonGottlieb Senior Partner David Swedelson present his Playing by the Rules seminar yet? Be sure to catch his next offering of this popular program with co-presenter Craig Phillips on July 30, 2014 at 8:00 a.m. in Valencia. The program is free to HOA board members and managers who preregister.

Topics covered include handling rule enforcement issues, the hearing process, the fining procedure and how to collect fines.

Follow this link to register for the event.

By SwedelsonGottlieb, Community Association Attorneys

spot_-_Google_Search.pngWe are often asked about what portions of an association’s CC&Rs and Bylaws need updating to reflect current state statute and best practices. The answer is usually simple – everything! Due to the reorganization of the Davis-Stirling Act effective January 1, 2014, which included many substantive changes, plus many other statutory changes that have occurred within the past 10 years, many associations’ governing documents have ceased to be reliable resources for effective governance and operation of an association. We are currently assisting many of the firm’s clients with complete amendment and restatement of their CC&Rs, Bylaws, Rules and Policies.

But what if your association just doesn’t have the time or money to commit to a full amendment and restatement, but would still like to make some improvements to your association’s governing documents? We suggest the board consider some “spot” amendments.
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Blog post by David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

estoppel%20sign.jpegMany boards of directors make enforcement decisions without considering all of the variables. We get contacted and told that an owner has violated the association’s CC&Rs. When we start asking questions, we find out that there have been similar violations in the past that the board has not dealt with. Or we find out that the violation is old news and the board failed to take timely action. Or that the violation was committed by a prior owner.

As Florida community association attorney Donna DiMaggio Berger states in a recent post to her blog (in an article entitled “Which affirmative defenses might derail your community’s enforcement efforts”), “it is the rare board that undertakes a thorough analysis before sending out those demand letters to determine if the owner can use any affirmative legal defenses to successfully challenge the association’s enforcement efforts.”
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By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

owner-towtruck.pngIn California, condo/HOA associations have the right to tow so long as they comply with the law. But sometimes, associations can be too zealous. I was just referred to an article about such a situation in Florida.

Last year, a Florida community association homeowner died after he tried to stop his car from being towed from in front of his home. Here is the short story:

After a dispute with the tow truck driver, this owner was apparently run over by his own car as it was being towed away. This owner, a married father of three, a professor and associate dean at the local university, came home and found that his autistic son’s tutor was parked in the second spot in his driveway. So he pulled in behind, with his car protruding onto the sidewalk and swale area.
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By David Swedelson, Esq. and Cyrus Koochek, Esq., SwedelsonGottlieb, Community Association Attorneys

drought.pngAt the end of April 2014, California Governor Jerry Brown issued an executive order in an attempt to bolster the state’s ability to conserve, manage, and consume water in light of the major drought conditions currently affecting almost every area of California and its water resources. Although the executive order makes several directives to state agencies and civilians regarding water conservation and the implementation of water reduction programs, one of the directives specifically involves homeowners associations.

To summarize, the directive states that any provision of the governing documents, architectural or landscaping guidelines, or policies of an association will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water saving measures contained in the directive, or any conservation measure adopted by an association’s local public agency or private water company. The directive also states that the reason for the directive is to prevent the reported practice of associations fining or threatening to fine homeowners who comply with water conservation measures adopted by a public agency or private water company.
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By David Swedelson, Senior Partner at SwedelsonGottlieb, California Community Association Attorneys

demolition.pngOften, we are asked by board members at community associations whether the board can use self help to resolve a problem where an owner is failing to maintain their unit or lot/home. Sometimes, we learn about it after the fact. In our experience, self-help is not usually the best or appropriate option. Fortunately, none of our clients have been sued for taking action, and there are no California court of appeal decisions or statutes that address this issue. But we can learn how not to approach this issue by considering what happened to a Texas association that took steps to deal with a problem that landed that association in some very deep you-know-what.
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