Regular readers of https://www.hoalawblog.com may recall our prior blog post regarding the new law impacting architectural applications for and installation of solar energy systems. Since then, SwedelsonGottlieb’s new Senior Associate Attorney, Brian Moreno, joined the firm, and he penned his own in-depth look at what the new law means for California homeowner associations. Brian’s article appeared in a recent issue of The Communicator, published by the Bay Area / Central California Chapter of Community Associations Institute. Follow this link to read/download Brian’s informative article.
SwedelsonGottlieb Assists HOA’s Successful Effort To Make Individual Buildings Become Smoke-Free
By David C. Swedelson, Esq. and Mark Petrie, Marketing Coordinator at SwedelsonGottlieb, Community Association Attorneys
Complaints about secondhand smoke are increasing, and many associations are looking for options for dealing with the issue. Many boards want to propose an amendment to the association’s governing documents but are concerned about enforcement, as they know that there are some smokers living at their associations.
If your development is made up of several detached buildings, each of which contain multiple units, you may want to consider an innovative alternative – amending the governing documents to allow the owners of each individual building to self-determine that their building will be smoke free! We did this for one of our clients, setting up a process by which the owners of a building can unanimously apply to the board for designation as a permanently smoke-free building.
The Davis-Stirling Common Interest Development Act Is Celebrating Its 30-Year Anniversary: Let’s Celebrate
The following is an excerpt from Community Association Institute’s California Legislative Action Committee’s article, the full text of which can be found here. SwedelsonGottlieb attorney Brian Moreno, Esq. authored the article.
Much has changed over the last 30 years. In 1985, the Dow Jones industrial average was at 1500. The Internet’s domain name system was created, and its first domain name was registered. The cost of a gallon of gas was 93 cents. Ronald Reagan was our President. The world was a different place. In 2015, the Dow Jones Industrial Average is now at about 18,000, there are hundreds of millions of active Internet domain names, and the cost of a gallon of gas is… well, that subject is complicated. More significant to the common interest development (“CID”) industry, the Davis-Stirling Common Interest Development Act, known as the Act, was born 30 years ago.
Remarkably, as signed into law by Governor George Deukmejianin on September 18, 1985, the original Davis-Stirling Act was only 25 pages long. It was a whole lot different than it is today. The original Davis-Stirling Act provided a framework that specifies the various rights and responsibilities of all parties involved with common interest developments. The original Act was amended and revised and added to over 50 times until it was completely redone and reorganized. The Act is now over 100 pages long. For the most part, those additional pages represent the countless hours of collaboration, analysis, research and work that our industry professionals have contributed to improving an already comprehensive and inclusive statutory scheme.
CAI Renews Its Call To Action Regarding HAM Radio Broadcasting at Homeowner Associations//Oppose Federal HAM Radio Special Interest Demands to Pre-empt Community Associations’ Guidelines
By David Swedelson, Partner at Swedelson Gottlieb, Community Association Attorneys
Federal legislators are still trying to pass new law that would allow HAM radio antenas to be installed at homeowners associations despite any restrictions on same in an association’s CC&Rs. We addressed this in a blog post in September of 2014; follow this link. Although that bill failed, Representative Adam Kinzinger (R-IL) has reintroduced the same bill, now designated as H.R. 1301.
Community Associations Institute (CAI) has again issued a call to action to its members across the country claiming that “if a HAM radio ‘reasonable accommodation’ standard becomes federal law, community associations face the real prospect of having limited or even no say on the installation of towers and large, fixed antennas used in HAM radio broadcasting.”
How Many Cats Does Your HOA/Condo Allow Each Owner To Maintain In Their Unit or Home? Be Prepared For A Change In City Law
By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys
The Los Angeles Times reports that the Los Angeles City Council is considering an increase in the number of cats that a Los Angeles City resident can own. Seriously? We are often called upon to deal with condo residents that have way too many cats in their units and are unable to properly care for them or their unit. As a result, neighbors complain of odors coming from these units. Not a healthy situation.
According to the article, the goal of the proposed rule change is not to encourage cat hoarding, but to save felines. “We want to give loving community members an opportunity to become part of the solution by adopting and/or fostering altered shelter cats in their homes,” said Brenda Barnette, General Manager, Los Angeles Animal Services. The article indicates that the city is seeking to increase the number of cats that one may own from three to five. The article also acknowledges that enforcement has been lax. I do not see this helping community associations.
SwedelsonGottlieb Associate Cyrus Koochek Receives CAI-OC’s Rising Star Award
On February 6, the Orange County Regional Chapter of Community Associations Institute honored SwedelsonGottlieb’s Associate Attorney Cyrus Koochek with its Rising Star award. The award is given to new members of the chapter in recognition of the member’s volunteer service and commitment to the chapter’s goals. Cyrus served on the chapter’s programs committee in 2014 and looks forward to continued success with the chapter this year.
Is your community association located in Orange County? Be sure to check out all the great events and opportunities offered by the chapter for managers and board members at www.caioc.org.
Welcoming Our New Attorney – Brian Moreno Joins SwedelsonGottlieb
He is finally here, and we could not be happier. Brian Moreno, already a seasoned community association attorney, has decided to move on from the firm he worked with for the last six years and bring his experience, skills and excellent reputation to SwedelsonGottlieb. Brian enhances the firm’s team of lawyers and will certainly benefit the firm’s clients. Brian could have joined any of the other community association law firms, yet he chose SwedelsonGottlieb. That says a lot about Brian and SwedelsonGottlieb.
Brian has extensive litigation and general corporate, real estate and community association legal experience. Follow this link to read Brian’s stellar resume. We hope you will have the opportunity to work with Brian.
HOA Tells Owners They Cannot Park Their Pickup Truck in Their Own Driveway – Seriously?
By David Swedelson, Partner, SwedelsonGottlieb, Community Association Attorneys

I was recently made aware of a lawsuit filed in Fayetteville, New York by an HOA against homeowners seeking to restrict them from parking their 2014 Ford F-150 pickup truck in their driveway. The association apparently has CC&Rs that limit parking in driveways to only “private, passenger-type, pleasure automobiles.” Many California HOAs have restrictions on the parking of commercial vehicles, and this often leads to debates as to what constitutes a commercial vehicle. At one association we represent, the board was having a serious debate on this, as one board member wanted to ban an owner’s truck merely because it was the kind of truck that is used for commercial purposes, but there were no observable indications that the truck was used for commercial purposes.
Follow this link to an article from a Syracuse newspaper on this story. The article has a photograph showing what appears to be a fairly typical pickup truck. The pickup truck in question does not have any markings on it showing that it is used for business, no racks on it for contractors to haul ladders or other equipment, etc. It looks like an everyday pickup truck that regular people use as their personal vehicles.
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Summary of New Legislation Effective January 1, 2015
By Sandra L. Gottlieb and David C. Swedelson, Partners and Community Association Attorneys at SwedelsonGottlieb
There was not a lot of new legislation in 2014 impacting California Community Associations, and what changes there were seemed to be focused on dealing with the drought. There were also changes to the law relating to solar energy systems, the ability of residents to grow fruits and vegetables in their backyards, to bring their attorney to an IDR meeting, and defining responsibility for the repair and/or replacement of exclusive use common area.
NEW LEGISLATION
The New Davis-Stirling Act:
The big story for 2014 was implementation of the complete rewrite of the Davis-Stirling Act (signed into law prior to 2014 and effective as of 1/1/14). If you have not been made aware of this by now, you likely live in a cave, as the Davis-Stirling Act has been rewritten and renumbered to Sections 4000 through 6150 of the California Civil Code and specifically excludes commercial associations, which now have their own set of laws that are much more abbreviated then the Act. Many association attorneys have prepared conversion charts for their clients which reference the old code sections and the applicable new sections. Contact your association’s legal counsel now if this is your first time hearing about the new Davis-Stirling Act.
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New Law (Effective January 1, 2017) Clarifies Responsibility for Maintenance and Repair of Exclusive Use Common Area
By David Swedelson, Partner and Community Association Attorney at SwedelsonGottlieb
Since the inception of the Davis-Stirling Act in 1985, there has been confusion regarding owner vs. association responsibility for the repair or replacement of exclusive use common area. AB 968, legislation sponsored by the Educational Community for Homeowners (ECHO), signed into law by the Governor on September 18, 2014, brings us long-needed clarification. We strongly supported this legislation (surprisingly, as will be explained below, many others did not), as it clears up some of the ambiguities created by what was formerly Civil Code Section 1364, now Civil Code Section 4775.
Civil Code Section 4775 currently states that unless otherwise provided in the CC&Rs, a community association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area. The homeowner of each separate interest is responsible for maintaining their separate interest (their unit or home) and any exclusive use appurtenant (attached or next to) their separate interest.
So, while Civil Code Section 4775 has addressed who is responsible for the maintenance, repair, and replacement of the common area, this code section only dealt with the responsibility for maintenance of the exclusive use common area, or so that is how many interpreted the code section.
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