Non-residents Accessing HOA Property? Be Wary of Prescriptive Easements

July 30, 2014,

hoa-gateAn easement provides an individual with the legal right to a specific and definable use of another's property. A homeowners association's ("HOA's") governing documents (i.e., "CC&Rs") often provide numerous easement rights to its members for access and use of the HOA's common areas and recreational facilities. While those easement rights are reserved for the benefit of the HOA's members, their guests and tenants residing in the HOA's development, it is not uncommon for non-residents and general members of the public to utilize HOA common area facilities such as walkways, trails and parks. HOAs may run into issues when trying to exclude non-residents from those areas, and may be reluctant to take more formal measures needed to do so (i.e., the installation of controlled access gates, the use of security personnel, etc.).

However, if a HOA fails to take such measures and fails to actively prohibit non-residents from accessing the HOA's common area facilities, the open and consistent use of those facilities by non-residents may ultimately result in the creation of "prescriptive" easement rights for those non-residents. In the recent unpublished decision in Applegate Properties, Inc. v. Coronado Cays Homeowners Association ("Applegate"), the California Court of Appeals held that such prescriptive easement rights had been created over the common area of the Coronado Cays Homeowners Association ("Association").

Continue reading "Non-residents Accessing HOA Property? Be Wary of Prescriptive Easements" »

TLG Expansion: New Greater Los Angeles Area Office!

July 14, 2014,

LA-Office.pngThe Tinnelly Law Group is proud to announce the opening of its newest office location in Downtown Los Angeles, California.

The opening of the L.A. office is in response to our rapidly expanding Greater Los Angeles Area client portfolio. Our attorneys and staff are already beginning to enjoy the working relationships we are developing with our L.A. clients and their management. Our new downtown location will assist in providing them with the responsive and personalized service for which we are known.

Our US Bank Tower office is located in the heart of Downtown Los Angeles in the premier Class A glass and stone building. At 1017 feet, it is the tallest building west of Chicago and east of Hong Kong, and perhaps symbolized the final rung in L.A.'s climb toward world city status. Over 73 stories tall, it has sweeping 360-degree views of the city.

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We thank all of our clients and industry partners for their continued support.

HOA Restrictions on Electronic Cigarettes (E-Cigs)

July 9, 2014,

electronic-cigs.jpgThe popularity of electronic cigarettes ("E-Cigs") has increased in recent years. In light of unknown health risks, many state and local governments are passing laws restricting the sale and use of E-Cigs. Homeowners Associations ("HOAs") are following this trend and adopting rules prohibiting their use in common areas.

Questions have surface regarding the extent to which a HOA's operating rules that already prohibit smoking in certain areas may be applied to restrict E-Cig use as well. Most sets of operating rules do not explicitly define "smoking." Additionally, while the California Legislature is attempting to include E-cigs under the traditional restrictions applicable to cigarettes, no statute has been enacted that does so.

HOAs that desire to treat E-Cigs the same as traditional tobacco smoking products should amend their operating rules accordingly. Such action may be done at the Board's discretion, pursuant to the rule change procedures required under Civil Code Section 4360 (i.e., provide general notice of the proposed rule change at least thirty (30) days before making the rule change, the decision on the rule change must be made at a board meeting, and after the decision is made, general notice of the rule change must be provided to the members within fifteen (15) days). However, prohibiting E-Cig use in the interior of the members' separate interests (i.e., not just in the common areas or exclusive use common areas) may require a formal amendment to the HOA's CC&Rs rather than a mere change to its operating rules.

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In light of the trend of state and local governments, as well as the unresolved questions concerning the health impacts of E-Cigs, operating rules that prohibit or restrict E-Cig use in common areas would likely be deemed "reasonable," and thus valid and enforceable. Additionally, HOA boards and management professionals should not disregard complaints from members regarding E-Cig "vapor" transmission, as we have blogged previously about how disregarding complaints dealing with second-hand smoke transmission can expose a HOA and its management company to substantial liability. In the presence of such complaints, a HOA should consult with its legal counsel for guidance.

Blog post authored by TLG attorneys Matt Plaxton and Steve Tinnelly.

New Client: New Chase Homeowners Association

July 3, 2014,

new chase.pngWe are proud to announce that New Chase Homeowners Association has selected Tinnelly Law Group as their association's legal counsel.

New Chase HOA is a private gated community near Mile Square Park and the Santa Ana River Trail in Fountain Valley.

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Our HOA attorneys and staff look forward to working with New Chase HOA's Board and management.

Inspection and Copying of Association Records

July 1, 2014,
hoa-records.jpg*New Library Article

There are numerous records and items of information maintained and generated by a homeowners association ("HOA") in the course of its operations. It is common for a HOA member to request copies of such records and information, especially in connection with an ongoing dispute the member may have with the HOA. Upon receipt of such a request, HOA boards and management professionals often have questions concerning the scope of the HOA's responsibilities in responding to the request and in ultimately providing the member with the requested records and information.

The California Civil Code contains several provisions governing (1) the degree to which a HOA member is entitled to inspect and to copy certain "association records," (2) the degree to which certain association records are not subject to inspection or copying by a member, and (3) the process through which the HOA must produce or provide access to its records in response to a member's request. This blog post provides an overview of these provisions, as well as some general guidance for HOA boards and management professionals on this issue.

*Note: Our attorneys have also published this information in a new article entitled "Inspection and Copying of Association Records" that is available for download from our Web site's library.

Continue reading "Inspection and Copying of Association Records" »

New Client: SkyRidge Community Association

June 26, 2014,

SkyRidge.png We are proud to announce that SkyRidge Community Association has selected Tinnelly Law Group as their association's legal counsel.

SkyRidge is a brand new neighborhood in the city of Riverside being developed by William Lyon Homes. SkyRidge will offer family-oriented homebuyers the opportunity to enjoy a spacious move-up new residence in the desirable Woodcrest area of Riverside. One and two-story single-family detached homes will range from approximately 2,575 to 3,803 square feet, with up to six bedrooms, large great rooms, three-car garages and optional rear yard loggias. Generous home sites with minimum lot size of 10,000 square feet will appeal to homebuyers who enjoy outdoor dining and entertaining. Many homesite locations will also afford distant views of the San Gabriel Mountains.

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Our HOA attorneys and staff look forward to working with SkyRidge's Board and management.

HOAs Prohibited from Fining Homeowners for Failure to Water

June 19, 2014,

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In its third consecutive year of severe drought, California faces a historic water shortage and wildfire danger. According to Mashable.com and US Drought Monitor, "The entire state is in some stage of drought, with 77% of the state suffering from 'extreme' to 'exceptional' drought conditions." Matters are expected to worsen, as California continues to experience its hottest year on record.

In response to these conditions, Governor Brown signed an Emergency Drought Proclamation in January 2014 declaring a state of emergency and calling upon all Californians to voluntarily reduce their water usage by 20 percent. As residents of homeowners associations ("HOAs") began responding to the Governor's plea by reducing their irrigation, HOAs fined their members for failure to maintain their yards in accordance with the governing documents. This led to swift action by both the Governor and the California Legislature.

In April, Governor Brown signed an Executive Order which effectively prohibits HOAs from fining, or threatening to fine, homeowners "who comply with water conservation measures." The Order further provides that "any provision of the governing document, architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water-saving measures contained in this directive." One of these water-saving measures is to limit outdoor watering to no more than twice per week.

The California Legislature is also considering three bills related to drought relief, which would impact HOAs. AB 2100 (Campos) and SB 992 (Nielsen) would prohibit HOAs from imposing a fine or assessment against a member for reducing or eliminating water of vegetation or lawns during a Governor-declared state of emergency, or a local government-declared emergency, due to drought. If passed, these bills would take effect immediately as urgency statutes. AB 2104 (Gonzalez) would provide that a provision of the governing documents, including the architectural or landscape guidelines, is void and unenforceable if it would have the effect of prohibiting low water-using plants as a group, or as a replacement of existing turf, or if it has the effect of restricting compliance with water conservation measures. The California Legislative Action Committee ("CAI-CLAC") continues to seek amendments to these bills as they work their way through the legislature.

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It is important to note that both the Proclamation and the pending legislation are limited to periods of a Governor-declared drought. HOAs are still permitted to enforce other landscape maintenance issues, such as weeds, brush, tree trimming, etc. In addition, HOAs may continue to enforce irrigation provisions, provided they are within the parameters outlined in the Order or as set forth by the local water agency. HOAs considering changes to their architectural or landscape guidelines should seek the advice of their legal counsel.

Blog post authored by Tinnelly Law Group's Director of Business Development, Ramona Acosta.

To submit questions to the HOA attorneys at Tinnelly Law Group, click here.

HOA Dealing with Unruly Tenants?

May 19, 2014,

eviction-hoa.jpg*Asked & Answered

Asked - A renter/tenant within our community is continually engaging in improper conduct, violating the governing documents, and causing nuisances that are impacting surrounding homeowners. Is there anything the HOA can do to evict the tenant? What steps can the Board of Directors take to prevent situations like this from happening in the future?

Answered - Improper conduct of tenants is a problematic situation commonly faced by homeowners associations ("HOAs"). Tenants often are not as involved in the affairs of the HOA as that of the HOA's members, nor do tenants feel the same sense of investment in the community. Additionally, members who rent out their homes typically prioritize rental income over the concerns of neighboring homeowners.

The degree to which a HOA may take action directly against an unruly tenant will be principally governed by the HOA's governing documents--specifically, the HOA's recorded declaration of covenants, conditions and restrictions (a.k.a. "CC&Rs"). The restrictions in the CC&Rs are "equitable servitudes" that are enforceable against the owners of the "separate interests" within the HOA (the HOA's members). Civ. Code § 5975. CC&Rs may contain provisions requiring tenants to comply with the HOA's governing documents. However, those provisions essentially confer obligations upon the members to control the conduct of their respective tenants. Therefore, any remedies available to the HOA in response to tenant violations or nuisance activities must generally be pursued through action against the tenant's landlord (the HOA member), not the tenant.

However, there are ways in which a HOA may broaden its ability to take action directly against a tenant. For example, a HOA can amend its CC&Rs to require any leases between a member and a third-party tenant to contain language which: (1) requires the tenant to comply with the governing documents, (2) grants the HOA the authority to take action directly against the tenant in response to violations, and (3) holds the landlord-member responsible for the HOA's attorneys' fees and costs incurred in taking such action. Such language would make the HOA a "third-party beneficiary" under the lease with the contractual right to enforce its terms through an eviction action or otherwise. Such language will also motivate members seeking to rent out their homes to secure higher-quality tenants at the outset.

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In the absence of such language, the HOA should take formal action directly against the tenant's landlord (the HOA member). Faced with the threat of fines and costly legal action, the member will likely realize that his/her financial interests are better served through securing a different tenant. A HOA dealing with unruly tenants should therefore seek the assistance of its legal counsel to determine the best course of action.

To submit questions to the HOA attorneys at Tinnelly Law Group, click here.

New Client: Bayview Terrace Homeowners Association

May 5, 2014,

Bayview-Terrace.pngWe are proud to announce that Bayview Terrace Homeowners Association has selected Tinnelly Law Group as their association's legal counsel.

Bayview Terrace is a private gated community located on the beautiful Back Bay in Newport Beach.

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Our HOA attorneys and staff look forward to working with Bayview Terrace's Board and management.

New Client: Spring Valley Lake Association

April 28, 2014,

Spring-Valley.pngWe are proud to announce that Spring Valley Lake Association has selected Tinnelly Law Group as their association's legal counsel.

Spring Valley Lake ("SVL") consists of 4,205 individually owned lots. SVL's amenities include a 200 surface acre fresh water lake, a community building, an equestrian area and three parks. There is a privately owned and operated country club and golf course that meanders through the community. SVL is located in the High Desert region of Southern California between the borders of Victorville and Apple Valley.

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Our HOA attorneys and staff look forward to working with Spring Valley Lakes' Board and management.

Clarifying Attorney-Client Privilege in HOA Construction Defect Litigation

April 23, 2014,
*New Case Lawhoa-construction-defect-meeting.jpg

Civil Code Section 6150 requires that a homeowners association ("HOA") make various disclosures to its membership in the context of construction defect litigation. The HOA is further required to hold a meeting of its membership to "discuss problems that may lead to the filing" of a construction defect action, as well as the options available to the members to address those problems.

Such a meeting will likely involve communications between the HOA's construction defect attorney and individual members of the HOA whom are not the attorney's direct clients. Therefore, the extent to which those communications are protected by the attorney-client privilege may be uncertain. Fortunately, the recent case of Seahaus La Jolla Owners Association v. La Jolla View LTD addressed this issue and clarified the privileged nature of communications between a HOA's attorneys and its membership in the context of construction defect litigation...

Continue reading "Clarifying Attorney-Client Privilege in HOA Construction Defect Litigation" »

New Client: JP Ranch Community Association

April 21, 2014,

JP-Ranch2.pngWe are proud to announce that JP Ranch Community Association has selected Tinnelly Law Group as their association's legal counsel.

JP Ranch is a master planned community consisting of 786 single family homes nestled in the foothills near the Calimesa Country Club & Golf Course.

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Our HOA attorneys and staff look forward to working with JP Ranch's Board and management.

Community Website for our Homeowners Association?

April 16, 2014,

hoa-web-site.jpg*Asked & Answered

Asked - Is it common for an association to create a website and share certain information via this website with owners/residents of the community? If yes, what are the regulations?

Answered - Yes. A community website can be a valuable and effective communication tool by allowing residents to access homeowner association ("HOA") information 24 hours a day, seven days a week. While there are no specific regulations regarding HOA websites, there are a few pitfalls that should be avoided when sharing community information in a public forum.

A typical HOA website will provide informational tools to the residents, including access to HOA documents, calendar of events, board meeting agendas, contact information, etc. The board may post most of these items within a public area of the website. However, some items will need to be housed in a secure location. For example, access to the HOA's CC&R's, Bylaws, and other governing documents should be restricted to a "Members Only" location of the site, and be protected via a user name and password.

The board may also consider posting disclosure notices, such as the Annual Budget Report, Annual Policy Statement, and other community-wide disclosures on the site. As noted above, these documents should be contained within the "Members Only" section of the website. The HOA would still be required to provide these notices to the membership per the General Delivery requirements outlined in Civil Code § 4045; however, keeping a copy on the website provides the members with a quick and convenient location to obtain additional copies, if necessary.

If the HOA allows its members to review assessment account information, or pay assessments online, the members will need to able to access a secure area of the website in order to protect their private information. To protect the HOA from liability from data breaches, be sure to utilize a payment vendor that is PCI Compliant. PCI Data Security Standards include requirements to maintain a firewall to protect cardholder data, encrypt transmission of cardholder data, use and regularly update anti-virus software, assign a unique ID to each user, and regularly test security systems, among other things.

hoa laws

Some HOA websites also include a chat room/forum for residents. Keeping your website social can help build a sense of community. However, it can also be a place for members to voice their grievances. Before including this feature, the board should work with the HOA's legal counsel to create a Terms of Use Policy, and determine any disciplinary action for violations of this Policy. Residents will need to agree to the Terms of Use prior to being allowed access to the chat room/forum. In addition, the HOA should have someone available to moderate the site, so inappropriate comments can be immediately removed. Due to the time and cost associated with monitoring an online forum, the board may find it more beneficial to instead have a list of Frequently Asked Questions ("FAQs"), as well as a Contact Form, where residents can have their questions quickly answered. Above all, the HOA needs to ensure that the website's information is kept up to date and relevant to ensure that residents keep coming back.

Blog post authored by Tinnelly Law Group's Director of Business Development, Ramona Acosta.

To submit questions to the HOA attorneys at Tinnelly Law Group, click here.

New Client: Barrington's Terra Vita, Inc.

April 11, 2014,

Terra-Vita.pngWe are proud to announce that Barrington's Terra Vita, Inc. has selected Tinnelly Law Group as their association's legal counsel.

Terra Vita is a Mediterranean-style condominium association located in the Sawtelle neighborhood of West Los Angeles. Consisting of 16 spacious units, the community is a walker's delight, conveniently located within a 15-minute walk to parks, recreation centers, and restaurants.

hoa laws

Our HOA attorneys and staff look forward to working with Terra Vita's Board and management.

Alterra Assessment Recovery Accolades

April 4, 2014,

accolade ribbon-blog.pngWe are privileged for the opportunities we have to build relationships with our HOA clients throughout the state of California. We are humbled when board members and managers take the time to express their appreciation for the work we provide to their communities:

"You are doing a wonderful job and we all appreciate it."
(Board President, Condominium Association in Claremont)

"The Executive board & I send sincere thanks for your diligent assistance on our behalf...as well as the homeowners in this matter."
(Board President, Condominium Association in Costa Mesa)

"Thanks for your diligent work collecting on this matter!"
(Account Executive, Master Association in Laguna Niguel)

"Amazing!! Thanks for all the hard work on this one!"
(Management Executive, Master Association in Hesperia)

"Thank you for all your help with all of this!!!!"
(Community Manager, Condominium Association in Santa Clarita)

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Our firm strives to serve our clients with the utmost care and attention. We are committed to building lasting relationships with our clients and to advancing the professional standards of our industry.