HOA Law Blog

September 30, 2000

Civil Code § 1353.5 – Right to Display The American Flag.

(a) Except as required for the protection of the public health or safety, no declaration or other governing document shall limit or prohibit, or be construed to limit or prohibit, the display of the flag of the United States by an owner on or in the owner’s separate interest or within the owner’s exclusive use common area, as defined in Section 1351.

(b) For purposes of this section, “display of the flag of the United States” means a flag of the United States made of fabric,

cloth, or paper displayed from a staff or pole or in a window, and does not mean a depiction or emblem of the flag of the United States made of lights, paint, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component.

September 30, 2000

Civil Code § 1353 – Contents of Declaration.

by David C. Swedelson

(a) (1) A declaration, recorded on or after January 1, 1986,

shall contain a legal description of the common interest development,

and a statement that the common interest development is a community apartment project, condominium project, planned development, stock cooperative, or combination thereof. The declaration shall additionally set forth the name of the association and the restrictions on the use or enjoyment of any portion of the common interest development that are intended to be enforceable equitable servitudes. If the property is located within an airport influence area, a declaration, recorded after January 1, 2004, shall contain the following statement:

September 30, 2000

Civil Code § 1352.5 – Covenants in Violation Of Government Code § 12955; Action for Injunctive Relief

by David C. Swedelson

(a) No declaration or other governing document shall include a restrictive covenant in violation of Section 12955 of the Government Code.

(b) Notwithstanding any other provision of law or provision of the governing documents, the board of directors of an association,

without approval of the owners, shall amend any declaration or other governing document that includes a restrictive covenant prohibited by this section to delete the restrictive covenant, and shall restate the declaration or other governing document without the restrictive covenant but with no other change to the declaration or governing document.

September 21, 2000

SwedelsonGottlieb’s Letter Sent To Govenor Arnold Schwarzenegger

by David C. Swedelson

SwedelsonGottlieb was asked to prepare a letter to Governor Arnold Schwarzenegger and his staff setting out our issues and concerns regarding AB 2598. The following is our letter that went out to the Governor on September 21, 2004:

Governor Arnold Schwarzenegger State Capitol Building Sacramento, California 95814

Re: Veto AB 2598

September 18, 2000

Governor Signs into Law Changes to Civil Code Section 1363.03 Dealing with Election Procedure

by David C. Swedelson

Please do not shoot the messenger as we are only reporting the news. On September 18, 2006, the Governor signed S.B. 1560 (the “Amendment”), which modifies recently enacted Civil Code Section 1363.03. This “cleanup bill” clarifies some troublesome issues, which will hopefully allow associations to get through the election process more efficiently.

• §1363.03(e)(1)

One of the provisions in 1363.03 required homeowners, when voting by secret ballot, to write his or her name in their own hand on the exterior envelope sent to the inspector(s) of election and state their unit, lot or tract number. The Amendment allows an owner to sign the exterior envelope and indicate the owner’s name or address or separate interest identifier that entitles that owner to vote. Therefore, the homeowner will no longer have to print their name, unit, lot and tract number in their own hand but may instead utilize a label. However, the member is still required to sign his or her name.

September 15, 2000

A Soon To Be State Law May Do More Harm Than Good

by David C. Swedelson

A Soon To Be State Law May Do More Harm Than Good Steven Shuey, PCAM, CCAM

Homeowner Associations exist in common interest developments to manage the community. This management includes providing for the maintenance of the common areas as well as administration. In many communities, this can mean thousands of dollars per month in regular monthly costs.

Associations pay their monthly bills with funds collected from owners through maintenance assessments, also known as a maintenance fee or dues. Without this regular recurring income, funds would not be available to meet the association’s obligations.

September 15, 2000

SAMPLE LETTER TO GOVERNOR SCHWARZENEGGER

by David C. Swedelson

Veto AB 2598 (Steinberg)

This is a sample letter that you can use as a template for your own letter to the Governor Schwarzenegger letting him know that this legislation protects delinquent owners at the expense of those owners who timely pay their assessments.

WRITE TODAY-DO THIS AS SOON AS POSSIBLE

September 13, 2000

As The Condo Market Sours, Buyers Turn To Courts Seeking Exit Deals

by David C. Swedelson

Interesting article recently appeared in the Wall Street Journal (and was also reported in the Los Angeles Daily Journal). Apparently there are “tens of thousands of empty or unfinished condominiums” in Florida. While we have not heard of this type of inventory in California, there are many condominium buildings under construction or recently completed, and many if not most of those units have not been sold. Many owners or individuals who’ve contracted to buy some of these uncompleted units may be seeking some sort of exit strategy and that may include lawsuits.

The Wall Street Journal article states that recent legal decisions in Florida courts indicate that won’t be that easy for buyers to get out of those deals. “the bottom line: unless it’s a bona fide contract dispute, and investors chance of winning appear to be slim.”

September 11, 2000

Homeowner Legislation Poised to Hurt More Than Help—CAI/CLAC‘s Press Release

by David C. Swedelson

Homeowner Legislation Poised to Hurt More Than Help-CAI/CLAC’s Press Release on AB 2598 The seven million Californians who live in homeowners associations will have to pay higher monthly dues, thanks to legislation passed in the last hours of the legislative session. Assembly Bill 2598 (Steinberg) again takes up the use of foreclosure to compel payment of delinquent assessments – a practice used in less than 0.007 of collections processes. Just last year California implemented a law (Kehoe, AB 2289) that provides comprehensive protections specific to dues collections, including extensive notification, payment plans and wait periods. These protections rank as the strongest nationwide. That’s why members of homeowners associations oppose AB 2598. Senior Sam Dolnick of La Mesa, CA, said the legislation will do more harm than good. “Many seniors in our association live on fixed incomes and they cannot afford to pay more. When placed in a squeeze, they will have to pay higher assessments to make up for those who may purposely not pay their assessments until they reach the $2,500 threshold.” Homeowner association resident and president of the Wildwood Association in Sacramento Lisa Lindsey said, “Assessments are the lifeline of homeowners associations. For smaller communities like mine, we would be crippled if 20 of our 137 residents were late on assessment dues. Our insurance alone costs more than $85,000.” Homeowners aren’t the only ones hurt by AB 2598. The legislation brings business disincentives for builders and lenders, who are central to responding to the state’s population growth. • Developers will not sell units if new buyers can willingly avoid paying the dues needed to maintain the property. • Banks and lenders will stop loaning money to developers and homeowner associations because their loan security is impaired. “We have thousands of community associations in California as clients. This law will have a negative impact on the ability of associations to secure financing for needed renovations and repairs,” said John Smith, Senior Vice President, U.S. Bank Homeowner Division. For More Information: www.responsibleneighbors.com

September 11, 2000

What’s Wrong With Assembly Bill AB 2598?—EVERYTHING.

by David C. Swedelson

We have been asked for more information on why Steinberg’s AB2598 is bad law. AB 2598 is one of two pieces of legislation proposed following the foreclosure earlier this year on a senior citizen couple in Calaveras County. Proponents of this legislation, which would make it more difficult for associations to collect assessments, suggest that what happened in Calaveras County is only an example of a rampant problem. They have not referenced any other similar problems; assessment foreclosure abuses are not rampant; there is no problem with the current system other than the fact that it compels homeowners who are delinquent to pay their assessments.

This legislation is a poor response and overreaction to a situation which is not a rampant problem. We say overreaction because of the following:

1. Currently, if a homeowner is delinquent in the payment of assessments, the association has the ability to record a lien securing that obligation. Of course, the association must follow the proper procedures, send out the appropriate notices, and wait the appropriate time. However, if that lien is not recorded, the homeowner can transfer title to the unit without paying their assessment obligation. It is the lien with the possibility of foreclosure that compels homeowners to timely pay their assessments.