Articles Posted in CC&R and Rule Enforcement

Blog post by David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys

Many 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

In 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

At 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

Often, 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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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.”

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

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

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.
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By David Swedelson, Senior Partner, SwedelsonGottlieb, Community Association Attorneys
San 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.
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By David Swedelson, Condo Lawyer, HOA Attorney, Partner at SwedelsonGottlieb, and Dog/Pet Lover

According 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.
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