HOA Law Blog

AB 2273 Would Provide New Owner Info To California Community Associations

Thu, 26 Apr 2012 15:39:55 -0800

Blog post by David Swedelson

The California Legislative Action Committee reports that the Assembly Housing & Community Development Committee passed AB 2273 on a unanimous bipartisan vote of 7-0. This proposed legislation will require recordation of foreclosure sales within 30 days after sale. 

CLAC reports that the author of the bill, Assembly Member Bob Wieckowski, a bankruptcy attorney, “has a complete grasp of the multiple issues that this bill triggers, which greatly assists [California Community Associations] in dealing with the escalating opposition from the lending community, trustees, land-title companies, and others."

CLAC also stated that in a press release that “[i]f passed, the bill would enable HOAs to know who the new owner of a home is that has been foreclosed, in most cases the lender. This information will enable HOAs to immediately begin invoicing for assessments instead of requiring the shortfall in revenue to be borne by the remaining owners, or defer maintenance, etc.”

In the Legislative Counsel’s Digest, it states that this bill would “provide that an acquiring owner of a separate interest shall, within 30 days of receiving title, provide to the association’s board secretary, agent, manager, or designated representative, a copy of the owner’s deed or other document transferring title to the purchaser acquiring owner of the separate interest and a written notice of the acquiring owner’s mailing address, except as specified.”

No indication as to how an association would enforce this new proposed legislation, as the new “acquiring owner” may not know about this requirement and there is no real sanction for failure to comply.

David Swedelson is a condo lawyer and HOA attorney. David was for many years a delegate to the California Legislative Action Committee. He can be contacted at dcs@sghoalaw.com.

Americans with Disabilities Act Revised Swimming Pool Requirements; Do They Apply to Your Association?

Wed, 18 Apr 2012 09:31:57 -0800

By Sandra Gottlieb, Esq., HOA Attorney and Condo Lawyer

As discussed in a previous blog post, our firm has received many inquiries regarding the Americans with Disabilities Act (“ADA”) 2010 Revised Requirements as they relate to swimming pools, with a March 15, 2012 effective date. Do the ADA’s revised swimming pool requirements apply to your homeowners association? The good news is that nothing has changed from what was previously required and it is likely that these new requirements do not apply to most California community associations. We thought we would provide some additional details regarding these questions.

On September 15, 2010, under ADA Title III (“Title III”), The U.S. Department of Justice published revised, final regulations implementing the 2010 Standards for Accessible Design (“2010 Standards”) for public swimming pools applicable to “public accommodations” (see Title III, Sections 242 and 1009). Compliance with the 2010 Standards is permitted as of September 15, 2010, but was not required until March 15, 2012.

According to the ADA Title III Technical Assistance Manual (“ADA Manual”), in order to be considered a “public accommodation” with Title III obligations, an entity must be private, and it must own, lease to or operate “a place of public accommodation.” According to the ADA Manual, “a place of public accommodation” is a facility whose operations affect commerce and fall within at least one of 12 categories. Bottom line, if your association opens itself up to the public, it may be subject to ADA and thus these new regulations.

California Community Association Held Not Liable For Criminal Acts Where Owners Were Not Able To Show That Association’s Negligence, If Any, Was The Cause of The Criminal Acts

Thu, 12 Apr 2012 13:12:39 -0800

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

Owners often want to hold their condo or HOA liable for their damages suffered after a burglary of their unit or home or other criminal act. They claim that their association was required to provide (more) security, that the gates were not working or that a light in the common area was out. An association’s liability may depend on many factors such as whether it is a secured complex, the nature of the security services provided, if any, the association’s knowledge of criminal activities in the area and whether the criminal activities are the kind of activities that the complaining homeowner has complained about, etc. But is an association liable merely because it does not provide security? Is the lack of security the cause of the crime? We have found that sometimes the answer to these questions is “yes”. However, more frequently, the answer to these questions is likely “no,” that the association is not liable for the alleged damage(s). And that was the holding in a recent unpublished California court of appeal decision.

In the Girardi v. San Rafael Homeowners Association case, a husband (a prominent attorney) and wife who owned a home in a luxury planned development (located in Pasadena) sued the Alta San Rafael HOA, where their home is located, for negligence after their house was burglarized twice (jewelry and other valuables with a value in excess of a million dollars was alleged to have been taken). The Girardis claimed that their association owed them, as owners, a duty to keep the premises reasonably safe, and breached that duty by failing to hire a security guard, monitor gates, and maintain the streetlights.

Follow this link for David's full article.

Does Your Condo or HOA Need to Install a Pool Lift?

Thu, 05 Apr 2012 14:03:26 -0800

Blog post by David Swedelson, Senior Partner at SwedelsonGottlieb, Community Association Attorney; Condo Lawyer and HOA Attorney

We have been receiving calls and emails asking whether California condo, planned development, or stock cooperative HOAs are required to comply with a 2010 change in Federal law that requires that pool lifts be installed at public pools. We are hearing about this now because there is a deadline for their installation.

Have not heard about this pool lift requirement? The 2010 changes to the ADA (Americans with Disabilities Act) for public pool facilities require public pools to be more accessible for disabled persons. Small pools must have at least one accessible means of entry, either a lift or sloped entry. Larger pools must have two accessible means of entry such as a lift, sloped entry with handrails, transfer wall with grab bar, transfer system with steps, or accessible pool stairs. Slope entries and lifts are by far the most common.

Deferred Maintenance: Another Consequence Of The Great Recession

Fri, 30 Mar 2012 15:27:26 -0800

By David Swedelson, California Condo Attorney and HOA Lawyer, Partner SwedelsonGottlieb, Community Association Attorneys

Many community associations continue to suffer from delinquent assessments; many owners are still living in their units or homes not having paid their lender/bank or their association assessments for 2 to 3 years. Many associations are not doing enough to collect those delinquent assessments and are leaving money on the table. At many associations, the senior foreclosed, and the associations have taken no action to collect believing that such efforts would be futile. Maybe yes, maybe no. We spoke about this new community association paradigm here.

There is another consequence of the Great Recession that will likely impact many California community associations in the future; many of these associations are deferring maintenance because they don't have enough income to pay for the regular expenses, much less for extraordinary expenses such as painting. And many are not funding reserves!

Jury Awards $3.87 Million To Owners In Molokai, Hawaii Condo Dispute

Tue, 27 Mar 2012 22:00:54 -0800

Blog article by David Swedelson, California Condo Lawyer and HOA Attorney, Partner at Swedelson & Gottlieb, Community Association Attorneys

We sometimes see community associations that are out of control, treating some of the owners or residents very badly, refusing to make repairs, perform maintenance in or around some owners’ units or homes or worse. As this case out of Hawaii tells us, this type of wrongful conduct can have disastrous results.

According to a news article, a jury awarded Molokai residents and condo owners $3.87 million in general and punitive damages against their condominium association. The couple said they were targets of threats, harassment and intimidation by an unlicensed contractor (who was alleged to have had a criminal record and was hired to do various tasks around the Ke Nani Kai Condominium in West Molokai) and the resident manager.

Trayvon Martin tragedy in Central Florida HOA highlights need to know what association volunteers are doing!

Wed, 21 Mar 2012 11:23:17 -0800

Blog post by SwedelsonGottlieb Partner David Swedelson, Condo Lawyer and HOA Attorney

Interesting and thought provoking article by Florida community association attorney Donna DiMaggio Berger, Esq. that addresses an issue that many of us have thought about, namely a community association's responsibility for volunteer Community Watch members as well as for the acts of other association volunteers. Follow this link to read the article.

For those that do not know the story, Trayvon Martin, a 17 year old kid was shot and killed by on February 26, 2012 by a volunteer Captain of the Neighborhood Watch in a gated Orlando, Florida community association.

Pets Must Be On Leashes If That Is What The Rules Say

Fri, 16 Mar 2012 09:06:27 -0800

By David Swedelson, Senior Partner, Swedelson & Gottlieb Condo Lawyer and HOA Attorney

Some condominium and homeowner association residents think that their pet is well trained and does not need to be leashed, and they ignore the association’s rules regarding leashes, believing they do not apply to their well-trained pet. They just do not get the fact that many people are afraid of dogs, especially when they are off leash. What they also do not understand is that just as a municipality has the power to cite a citizen for not having their dog on a leash, so too does a California condominium or homeowner association have the right to enforce its leash rules.

Suspension of Voting Rights, Qualifications For Serving On The Board and Related Issues

Wed, 14 Mar 2012 09:23:30 -0800

By David Swedelson, Condo Lawyer and HOA Attorney

For many associations who are preparing to hold their annual elections, boards and managers are trying to determine who is actually eligible to be a candidate for the board and who can vote. This is a big issue these days as there are so many delinquent owners. Boards and managers are questioning why an owner who is not paying their assessments or is in violation of the CC&Rs or rules should be able to serve on the board. The fact is that for many California community associations, the bylaws and other governing documents may not set out any qualifications for serving on the board. This means that even a tenant or other non-owner can serve on the board.

Follow this link for a PDF of David's full article on this subject.

Governor Brown Signs SB 880 Dealing With Electric Vehicle Charging Stations

Thu, 08 Mar 2012 09:18:37 -0800

By the condo lawyers and HOA attorneys at Swedelson & Gottlieb

As reported by the Community Association Institute’s California Legislative Action Committee (CLAC), “Senate Bill 880 leapfrogged ahead of hundreds of other bills and was signed into law on February 29, 2012. Since this bill was passed as an Urgency Bill, it goes into effect immediately.”

As you may remember, in late 2011 the California Legislature pushed SB 209 through despite several flaws, and when Governor Brown signed SB 209, he admitted the bill had a number of serious flaws, such as allowing the taking of association common areas for a homeowner's private use in violation of California's Constitution and the Davis-Stirling Act (which generally requires approval of 67% of an association's membership before an owner can exclusively use common areas).

When Governor Brown signed SB 209 into law, he issued the following message:

“To the Members of the California State Senate:

Senate Bill 209 advances the important state interests of lowering vehicle emissions and decreasing dependency on foreign oil. These interests are advanced statutorily by removing unreasonable burdens in common interest developments to the installation of plug-in vehicle charging stations. Charging stations are part of the infrastructure that must be built to integrate electric vehicles into our daily lives by allowing plug-in vehicles to be recharged faster and to minimize impact to the electrical grid. I enthusiastically support this bill.

This bill, unfortunately, contains language that could permit individual homeowners to unreasonably use or occupy common areas. The author has assured me that she will pursue legislation that clearly protects the right of the common interest developments to establish reasonable rules for any use of common areas for charging stations.”

SB 880 is what the legislature calls “clean up” legislation, as it addresses the problems created by SB 209. The bill went through the Legislature on a priority basis, was signed into law on February 29, 2012, and took effect immediately.

What are the changes, you ask? Follow this link for a red-lined copy of the law showing the changes as a result of SB 880 highlighted. The statute, as revised, gives a board of directors authority to grant exclusive use of common areas to an owner to install and maintain utility lines and meters in the common area necessary to service a charging station located in the owner's garage, carport or designated parking space. This change corrects the initial version of the statute which did not clarify that the charging station itself must be in the owner’s deeded, designated or assigned parking space/area. The bill also resolves the unauthorized "taking" of common areas in violation of statute issue, as new statutory language provides that homeowner approval is not required prior to an association permitting the installation of an owner’s utility lines and meters in the common area to service an electric vehicle charging station in the owner’s parking space or area.

The new law authorizes "private" charging stations to be installed in the common area for the exclusive use of an owner, but only if installing a charging station in an owner's exclusive use common area parking area or space is impossible or unreasonably expensive. The new law requires in such case that the association and the owner enter into a license agreement for the exclusive use of the common area where the charging station is installed. It should be noted that owner approval is also specifically not required for this grant of exclusive use common area. The revised statutes can be viewed at Civil Code Section 1353.9 and Civil Code Section 1363.07.

The revised statute also gives California community associations and owners authority to install a charging station in the common area for the use of all members. It grants authority to associations to develop rules for the use of "public" charging stations, and allows associations to create new parking spaces where none previously existed to facilitate their installation. And, associations also have express authority to now create a new parking space in the common area where one did not previously exist to facilitate the installation of an electric vehicle charging station.

While we appreciate this clean up legislation, it still leaves several unanswered questions, and California community associations will undoubtedly have to address the resulting legal and practical issues of this new law. Boards of directors of associations and association managing agents are encouraged to consult with association legal counsel when addressing a request from an owner to install an electric vehicle charging station.

The Condo Board, The Lawsuit And The $40,000 Parrot

Mon, 27 Feb 2012 16:23:48 -0800

Blog post by David Swedelson, Partner, SwedelsonGottlieb, California condo lawyer and HOA attorney

I recently posted a blog article and link to my article about the $55,000 dog. Out of Toronto comes word of an (almost) $40,000 parrot. Some owners are finding that their pets can be very expensive if they do not comply with their condominium or homeowner associations' governing documents.

According to the article (follow this link), a Toronto (Canada) condominium association took action when neighbors complained of hearing the parrot. Apparently, this condominium association has a no pet policy. The homeowner, who owned the unit at the association since 1989, thought that the “no pet” policy applied only to dogs and cats. At first, the owner claims he tried to make a joke of the dispute, writing a sarcastic letter to the board asking if it would be OK if he had a goldfish. The answer was no. Apparently, his association takes the prohibition on pets very seriously, as they should.

The owner claims that he was merely taking care of the parrot for a friend for about 2 weeks, and that he did not even remember the parrot’s name nor what it talked about. But apparently, the neighbors did hear that parrot, and the board did not believe that the bird had been removed from the unit. After the owner provided 3 affidavits confirming that the parrot was not living in the unit, the board made its own inspection. After not finding the bird, the board claimed that the owner had removed the bird in a blanketed box (which they observed on surveillance video). And we thought that this kind of thing only happened at California condominium associations!

After the owner consented to a court order to get rid of the bird (the one he claimed did not live in his unit), and pay $3000 in court costs to his condo association, he learned that his board was recording a lien on his unit to recover “actual additional costs” that the board claimed the association incurred while trying to evict the parrot. The board was seeking a whopping $41,599.

Not quite sure how the dispute got before a judge (perhaps when the association sought legal assistance to foreclose on the lien), but the judge rejected the association's claim and ordered that the homeowner pay $6500, less $5000 in court costs awarded to the owner for winning a motion challenging the fees and costs being demanded by the association. The owner's attorney was quoted as saying “we argued the fees were excessive, and the court agreed with us.” The court noted that both parties had waived opportunities for mediation. That may have been a mistake, as the Toronto condominium association spent a fortune to get rid of a bird that may not have existed.

In the case of the $55,000 dog, the subject of the “$1000 Per Pound Dog” article, the owner also argued that the fees were excessive, and the court rejected that argument. “A lesson, perhaps, in what happens when most of the talking is done by a bird.”

Have pet issues at your California condo or homeowners association? Comments or questions? David Swedelson can be contacted via email: dcs@sghoalaw.com

Nuisance Provision In HOA's CC&Rs Allowed For Attorney's Fees and Costs Award of $600,000+; Allocation Not Necessary Where Same Facts And Evidence Involved On All Claims

Tue, 21 Feb 2012 15:37:05 -0800

Blog post by David Swedelson, Swedelson & Gottlieb Partner, Condo Lawyer and HOA Attorney

Think the court will not award significant attorney's fees in a breach of CC&Rs case? In Klein v. Nyamathi (Bell Canyon HOA), a recent (unpublished) Court of Appeals Decision, the Nyamathis were found liable to their neighbors at a planned development located in the Bell Canyon area of Southern California for almost $400,000 for improperly grading their property and, as a result, flooding the Kleins’ property under nuisance and breach of contract/CC&Rs theories. The Kleins also sued their HOA, claiming that the board had failed to enforce the CC&Rs as to their neighbors; the HOA settled before trial.

The trial court also awarded the Kleins attorney’s fees of $552,655.75 and costs of $63,595.83, over $600,000. The Nyamathis appealed, contending that while the Kleins may be entitled to their attorney's fees for the breach of the CC&Rs claims, they were not entitled to all of the fees, as some of the claims were not covered by the CC&Rs. They argued that the fees must be apportioned. The Court of Appeal did not agree.

The planned development's CC&Rs did have a prohibition on nuisances, as most associations have, and the flooding was a nuisance allowing for the award of fees. The Court of Appeal found that no allocation of fees was necessary between compensable and noncompensable claims because the same facts and evidence were interrelated to all theories of recovery.

Follow this link for David Swedelson's letter to the Court of Appeal requesting that this decision be published so it can be cited as law, as often California community associations are required to sue owners for both CC&R violations and for other causes of action.

David Swedelson was an expert consultant in this case. He can be reached for comments: dcs@sghoalaw.com

Lead Paint On Your Common Area Walls?

Sat, 18 Feb 2012 15:42:07 -0800

Blog posting by David Swedelson, Partner Swedelson & Gottlieb; Condo Lawyer and HOA Attorney

As of April 22, 2010, the new Environmental Protection Agency lead paint requirements for most dwelling units and common areas within homeowners associations which were built before 1978 became effective and may impact many California Community Associations.

Under the EPA’s Lead Based Paint Renovation, Repair and Painting Program Rule, firms who are paid to perform work which “disturbs” paint in non-exempt pre-1978 residential housing and multi-family structures (condominiums, stock cooperatives) must be EPA certified, and all individuals who are actually performing the work must either be certified renovators or must have been trained by a certified renovator. Additionally, all renovations must be performed according to EPA lead-safe standards and practices. (Two additional provisions of the law are already in effect — EPA specified notification requirements to owners and occupants, and EPA record keeping requirements.)

The requirements of the new rule apply to all “renovations”, and the law defines that term very broadly to include most repairs, remodeling, and maintenance activities, including window replacements. Additionally, electrical, plumbing and carpentry work could also be subject to the law.

So if your association has on staff construction personnel on staff, and there is lead in the paint on your common area walls (exteriors and corridors), and your staff is not EPA certified, then they cannot do any work that disturbs the lead paint.

There are some exemptions to the law’s requirements, including the following:
• Housing built in 1978 or later.
• Housing for elderly or disabled persons, unless children under six reside or are expected to reside there.
• Zero bedroom dwellings (studio apartments, dormitories, etc.).
• Housing or components declared to be lead-free by a certified inspector or risk assessor.
• Minor repair and maintenance activities that disturb 6 square feet or less of paint per room inside, or 20 square feet or less on the exterior of a home or building. However, minor repair and maintenance activities do not include window replacement and projects involving demolition or prohibited practices.

And where the firm doing the work obtains a signed statement from the owner that all of the following are met, then the training, certification and work practice requirements of the rule do not apply:

• The renovation will occur in the owner’s residence
• No child under age 6 resides there;
• No woman who is pregnant resides there;
• The housing is not a child-occupied facility; and
• The owner acknowledges that the renovation firm will not be required to use the work practices contained in the EPA rule.

It is important to note that there are severe penalties for violations of this law, including fines of up to $32,000 per violation, per day.

Neighbor-to-Neighbor Disputes: They Are Such a Nuisance

Thu, 16 Feb 2012 09:05:56 -0800

By David C. Swedelson, Esq., Senior Partner at Swedelson & Gottlieb; Condo Lawyer and HOA Attorney

Not a week goes by that we do not hear from a manager or member of a board of directors inquiring as to whether or not the association has to enforce the governing documents. Often, the enforcement “issue” has to do with an alleged nuisance that may be impacting only one owner such as cigarette or marijuana smoke, noises from hard surface flooring in the unit above, or an odor. This question often leads to debate between board members, as to whether the association is absolutely obligated to enforce the restrictions and the CC&Rs.

Attorneys have for years generally followed the concept that community associations should not likely bring legal action in neighbor-to-neighbor disputes, even if the dispute involves a violation of the CC&Rs. But does this mean that the association should not get involved at all? Probably not.

Follow this link to read the entire article.

Dealing With Nuisance Violations

Wed, 15 Feb 2012 16:04:18 -0800

View the slideshow presentation prepared by David Swedelson of SwedelsonGottlieb and Diana Wright of Action Property Management for a recent seminar held by the Community Associations Institute - Orange County Regional Chapter.

Dealing With Nuisances

View more presentations from markpetrie1.