Articles Posted in CC&R and Rule Enforcement

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

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.
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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 and Cyrus Koochek, Community Association Attorneys at SwedelsonGottlieb

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.
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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.
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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.
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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.

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.

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 …”]
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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.
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