HOA Law Blog

November 29, 2012

Are Persons Who Are Not Owners Allowed to Attend Association Board Meetings? Yes, If The Board Allows This. Otherwise, The Answer Is No.

Screenshot%2011%3A29%3A12%207%3A17%20PM.png Blog Post by David Swedelson, SwedelsonGottlieb Community Association Attorneys

We are often asked whether persons who are not members of the association can attend association board meetings. The short answer to this question is yes, subject to the considerations discussed below. We are also asked if non-members can be excluded from board meetings; the answer is yes, and this is also subject to considerations that are addressed below.

California Corporations Code § 1363.05, known as the Common Interest Development Open Meeting Act, provides, at subsection (b), that any member of the association may attend meetings of the association’s oard of directors, except executive session meetings of the board. This statutory provision is silent as to whether non-owner residents of the association or other non-members can attend open/general session Board meetings. Further, most association’s bylaws do not prohibit non-members from attending board meetings, and are silent on this issue.
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November 27, 2012

Complaints From Annoyed Neighbors? Loud Sex, Smoke & Noise!

by David C. Swedelson

Blog Post by David Swedelson, Partner SwedelsonGottlieb

As community association attorneys, we are often called upon to deal with neighbor to neighbor complaints and disputes. Well, often is probably an understatement. How about daily? These complaints generally deal with smoke from cigarettes and more lately from (medical) marijuana, hard surface floor noise, owners that fail to pick up after their pets, loud stereos and TVs, and sometimes complaints regarding loud sex. At most condos and HOAs, residents expect their association to be their intermediary. And sometimes we do receive copies of some interesting notes that had been passed on to the offending owner or resident, and sometimes they are quite comical.

A manager of condominium associations referred me to a series of photos posted by the Huffington Post with the title “Most WTF Notes From Annoyed Owners” consisting of 31 photographs of notes from neighbors “reminding their fellow man to stop having sex so loudly, pick up their dog’s waste and other assorted annoyances.” The photos of notes gave me quite a chuckle, especially this one, and I thought I would share them with readers of our blog. Note that these photos include some NSFW (not safe for work) language that some might find offensive. Follow this link to see all the photos.

November 16, 2012

New Amendment to Civil Code Requires Lenders to Record Their Trustee’s Deed Within 30 Days Of The Foreclosure Sale– Or Else…Nothing! New Legislation That Really Does Not Resolve The Problem

by David C. Swedelson

We have been receiving a number of inquiries regarding Assembly Bill 2273 that was signed into law by the Governor, effective as of January 1, 2013, that amends Civil Code Section 2924b. This new law requires: (1) recordation of a trustee’s deed upon sale within 30 days of the sale; and (2) a copy of a recorded trustee’s deed upon sale to be provided to an association within 15 days of the trustee’s sale, provided that the association has recorded the statutorily required request for notice on the subject property pursuant to Section 2924b(f) prior to the recordation of the trustee’s notice of default. (Currently, the copy of the recorded trustee’s deed must be provided to associations within 15 days of the date the trustee’s deed upon sale is recorded.)

Follow this link to download our full printable article on this matter.

November 15, 2012

Towing Vehicles at your Community Association

by David C. Swedelson

We are often asked if a California condominium or homeowners association has the authority to tow vehicles from the association if the vehicle is parked in violation of the association’s Rules and Regulations. The answer is that an association has the right and authority to tow vehicles, assuming that the Association has the proper signage posted in accordance with the California Vehicle Code, the towing is conducted in accordance with the California Vehicle Code, and the association’s Rules allow for same. Do you tow vehicles at your association? Are you considering adopting rules regarding towing? We have updated our information on towing vehicles at community associations and turned it into a printable article. Follow this link to download it.

Need assistance with developing towing rules and/or policies? Contact David Swedelson at dcs@sghoalaw.com

November 9, 2012

Holiday Decorations; ‘Tis the Season to Be Tolerant

by David C. Swedelson

holiday%20lights.png The holidays are just around the corner, and it’s time for community association boards to start getting ready to address issues connected with holiday decorations. What kinds of limits should be placed on holiday decorations? How do you implement holiday rules and regulations? All that and more questions are answered in our article ‘Tis the Season to Be Tolerant: Building a Sense of Community in Spite of Holiday Decoration Rules.

November 9, 2012

Changes To The Davis-Stirling Act Cannot Be Implemented Until 2014

by David C. Swedelson

by Sandra L. Gottlieb, Esq., Senior Partner at SwedelsonGottlieb, Community Association Attorneys

As most everyone in the community association industry knows (or should know), on August 17, 2012 California Governor Jerry Brown signed into law Assembly Bill (“AB”) 805 which reorganizes and makes significant changes to the Davis-Stirling Common Interest Development Act (the “Act”). While the date for mandatory compliance is January 1, 2014 (meaning that although the change is now law, the new and revamped Act does not take affect until 2014), we have heard that a rumor has been spreading within the industry that associations have the option to implement the new laws beginning January 1, 2013. This rumor is false and this is simply not true. Could you imagine the chaos that would ensue if some associations followed the new Act and some the old? We can!

The community association attorneys at SwedelsonGottlieb have attacked AB 805 head-on, reading every single word and evaluating each component of the new legislation/Act. Section 3 of AB 805 states the following: “This act shall become operative on January 1, 2014.” Nowhere in the legislation does it say that there is an option to make the new Act operative earlier. To confirm our research, we contacted a representative of the Assembly Housing & Community Development Committee, the committee that introduced the legislation. The representative confirmed our findings and stated: “The operative date of the legislation is January 1, 2014, there is nothing in the bill about early implementation.” Accordingly, don’t be misled! Early implementation is not an option and in fact, we recommend associations implement the new legislation on January 1, 2014 – no earlier, and certainly no later.

October 31, 2012

SwedelsonGottlieb 2012-2013 Annual Disclosure Checklist

by David C. Swedelson

This is a busy time of year for community association managers and board members. For those associations whose fiscal year runs from January to December, and most do, it is budget time. But in addition to the budget, there are a number of other disclosure documents and notices that California condominium and homeowner associations are required to annually distribute to association members.

As we do each year, SwedelsonGottlieb has compiled a list of all of the documents and notices that are required to be prepared and distributed to owners on an annual basis. Follow this link to our checklist for 2012-2013. There were no changes to the Davis-Stirling Act regarding disclosures which apply this year or next year, and this list is not much different from last year’s.

October 31, 2012

Distribute Budget Packages and Most Annual Financial Disclosures Electronically

by David C. Swedelson

By David Swedelson, Senior Partner, SwedelsonGottlieb; Condo Lawyer and HOA Attorney

Apparently there are many of you out there that are not aware that as of January 2010, California community associations are permitted by law to distribute budget packages and most annual disclosure documents to owners electronically so long as owners give their written consent to receive them by email. Once that consent is obtained, budget distribution can become virtually paperless. To read the statute, follow this link for Civil Code § 1350.7. This statute was amended effective in 2010 to permit all notices listed in a new Index (read the statute) to be distributed electronically, by following the member consent requirements in the Corporations Code.
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October 31, 2012

Unexplained Noise Issues in Condominiums – Is Your Condominium Association Haunted?

by David C. Swedelson

Blog post by David Swedelson, Senior Partner at SwedelsonGottlieb, Condo lawyer and Community Association Attorney

Okay, it is Halloween. I have been representing condominium associations for 30 years and have never heard of one that is haunted, at least not with goblins and ghosts. But apparently there are some where residents have claimed to have seen ghosts. Follow this link to an article posted by a condominium law firm in Ontario, Canada. Apparently ghosts are more prevalent in condominium conversions, especially converted factories or hospitals. And of course, there is the story about spirits who were angry about the removal of gravesites on part of the condo property that was formerly a cemetery. The article also references a story from Hawaii where a security guard claimed that there was a ghost in the garbage room. (The story is about a man who murdered his wife and stuffed her body parts into garbage bags which ended up in the garbage room; the security guard believes that the wife’s ghost was looking for her head which was never found!)

So here’s a question: if an owner or resident complains of strange noises or voices, flickering lights or disappearing items without any logical explanation, is the condominium association obligated to hire Ghostbusters? Happy Halloween.

October 30, 2012

Neither a Community Association Nor its Management Have Liability under the Federal Fair Debt Collections Practices Act

by David C. Swedelson

By David C. Swedelson, Senior Partner at SwedelsonGottlieb; Condo lawyer and HOA attorney

We have had to extricate several of our community association clients (and often their management as well) from claims or lawsuits relating to the federal Fair Debt Collections Practices Act (FDCPA). It is well settled law that the FDCPA applies to the collection of delinquent and unpaid assessments for condominium and homeowner associations. However, the FDCPA does not apply to collection efforts which a community association, the creditor, undertakes on its own to collect on a debt, nor does it apply to its agents whose collection activities are “incidental to a bona fide fiduciary obligation” or which concern a “debt which was not in default at the time it was obtained by such person.”

As it relates to the collection of delinquent community association assessments, courts have held that an association management company is not a “debt collector” under the FDCPA. Courts have held that an association’s management company falls under the exceptions found in the FDCPA. This determination was based on the fact that the management company has a fiduciary obligation to collect assessments on behalf of the association. But this exemption only applies if the management company was obligated to collect the delinquent assessment debts prior to them being delinquent. A management company may be responsible to comply with the FDCPA if an owner/property was already in collection at the time the management company started managing the association.