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Civil Code Section 4925 grants to each member of a homeowners association (“HOA”) the right to attend HOA board meetings (except for executive session meetings). Section 4925 also grants members with rights to speak at board meetings and to address the board during open forum. However, these rights are explicitly granted to the HOA’s “members” (the owners of lots or units within the HOA’s development), not to a member’s agent or attorney. The California Court of Appeal addressed this issue in the 2013 case of SB Liberty, LLC v. Isla Verde Assn. Inc., where it affirmed a HOA’s ability to prohibit a member’s attorney from attending a board meeting on the member’s behalf.

However, Assembly Bill 1720 (“AB 1720”) was just proposed by the California Legislature in order to change this structure by amending parts of Section 4925. If signed into law, AB 1720 will add new subpart (c) to Section 4925 to state:

“The board shall permit an attorney who represents a member to attend any board meeting that the member is permitted to attend, regardless of whether the member attends. Where possible, the member shall give the board at least 48 hours advance written notice that his or her attorney will attend the board meeting.”

AB 1720 follows in the same vein as legislation which became effective January 1, 2015. That legislation (AB 1738) was enacted to grant a HOA member the right to be assisted by an attorney when the member is participating in Internal Dispute Resolution (IDR) with a member of the board.

hoa laws AB 1720 could be problematic for HOAs by placing boards in a position of having their meetings observed or disrupted by the attorney of a member whom is, or is likely to become, involved in a dispute with the HOA. Such a situation will likely have a chilling effect on the discussions and actions taken at a board meeting where a member’s attorney is present, especially if the HOA’s attorney is not present. While AB 1720’s language currently requires the member to, “where possible,” give the board at least 48 hours written notice that his/her attorney will attend the board meeting, it does not clearly specify whether the attorney must be allowed to attend regardless of whether the member actually provides such notice. Moreover, this notice requirement is presumably intended to provide the HOA with enough time to arrange for its attorney to attend the meeting as well. A mere forty eight (48) hours notice may not be sufficient in this respect. If anything, members should be required to comply with the same timeline currently imposed upon the HOA when it provides notice of board meetings to its members: four (4) days. We will continue to track AB 1720 as it makes its way through the legislature.

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BoulevardWe are proud to announce that Boulevard Homeowners Association has selected Tinnelly Law Group as their associations’ legal counsel.

Located in Santa Clara, Boulevard is the latest collection of condominiums designed for Silicon Valley by Shea Homes. The Boulevard is conveniently located near Santa Clara’s thriving businesses, cultural centers and thoroughfares, and offers its own centrally located park.

hoa laws Our HOA attorneys and staff look forward to working with Boulevard’s Board and management.

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RavelloWe are proud to announce that Ravello Homeowners Association has selected Tinnelly Law Group as their associations’ legal counsel.

Ravello by Shea Homes is a brand new condominium community located within Sorrento at Dublin Ranch. Residents will enjoy a pool, clubhouse, sports parks, and landscaped trails in a verdant park setting.

hoa laws Our HOA attorneys and staff look forward to working with Ravello’s Board and management.

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*New Case Lawhoa-meeting-agenda

HOA board meetings are governed by the “Common Interest Development Open Meeting Act” (“Open Meeting Act”)(Civil Code Sections 4900 through 4955). The Open Meeting Act is designed to bring a sense of transparency to HOA governance, and is similar in purpose to California’s “Brown Act” (Government Code Section 54950 et seq.) which guarantees the public’s right to attend and participate in public meetings of local legislative bodies (i.e. City Council Meetings). Both the Open Meeting Act and the Brown Act include, among other procedural requirements, language regarding the notice that must be provided in advance of HOA/legislative body meetings, respectively.

In June 2015, the California Court of Appeal rendered an opinion which addressed a notice requirement under the Brown Act. In Castaic Lake Water Agency v. Newhall County Water District, et al, Castaic Lake Water Agency (“Castaic”) moved the trial court to declare void an action taken at a public meeting because the related agenda identified an incorrect Government Code section as the basis for the scheduled action to be taken at that meeting. In dismissing Castaic’s action, the Court held that substantial compliance with the Brown Act is the governing test, and that the notice given by Newhall Water District in the agenda was sufficient to inform the public of the purpose of the meeting.

hoa laws The holding in Castaic applies only to public meetings of local legislative bodies, and therefore is not directly applicable to common interest developments and HOAs. However, that decision could be persuasive in a factually similar HOA context. If an action taken at a HOA Board Meeting is challenged because the agenda incorrectly cites to a provision that does not accurately identify the basis of the Board’s authority to discuss/take such action, the ‘substantial compliance’ test may be considered to rebuff that challenge. Specifically, a HOA could argue that the agenda substantially complied with the Open Meeting Act and was therefore sufficient with respect to informing the membership of the purpose contemplated by the referenced action item set forth in the agenda.

Blog post authored by TLG Attorney, Kumar Raja.

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We are proud to announce that View Pointe Maintenance Corporation has selected Tinnelly Law Group as their associations’ legal counsel.

View Pointe is a condominium community located in Anaheim Hills, in close proximity to the Canyon Rim Reservoir, Anaheim Hills Golf Course, and The Cleveland National Forest Trails.  Residents enjoy views of the city lights and Weir Canyon Regional Park, a community pool, and three spas.

hoa laws Our HOA attorneys and staff look forward to working with View Pointe’s Board and management.

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MontecinaWe are proud to announce that Montecina at La Costa Homeowners Association has selected Tinnelly Law Group as their associations’ legal counsel.

Montecina by Taylor Morrison is a brand new community of single family homes located within the La Costa Town Square development in Carlsbad. Residents will enjoy a community park, garden, and ocean views.

hoa laws Our HOA attorneys and staff look forward to working with Montecina at La Costa’s Board and management.

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hoa-mold-growth*New Legislation

Existing law requires a landlord to repair certain “dilapidations” that render a unit untenantable. SB 655 (Mitchell) was proposed earlier this year in order to specify a landlord’s responsibilities in connection with repairs to a building that are necessitated by the presence of mold. SB 655 was approved on October 9, 2015 and its changes to the law will become effective January 1, 2016.

As a result of SB 655’s passage, new Section 1941.7 will be added to the Civil Code in order to alleviate a landlord’s responsibility to repair mold damage until the landlord receives notice or if the tenant is in violation of his/her obligations specified under Civil Code Section 1941.2. What’s more significant is how SB 655 will also amend Sections 17920 and 17920.3 of the Health & Safety Code to include “visible mold growth” as a substandard building condition that could subject a landlord to criminal penalties (misdemeanor), with a limited exception provided for mold that “is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use.”

SB 655 speaks to landlords (a “lessor of a building”), and not necessarily homeowners associations (“HOAs”). However, courts have applied landlord/tenant law to HOAs in certain circumstances, such as those involving issues of life safety. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490.) Thus, there is a concern circulating throughout the HOA industry that a condominium HOA (i.e., its Board or management) could now face criminal liability for its unreasonable failure to address reports of mold and to take appropriate corrective measures.

hoa law firm We do not believe that SB 655 will ultimately subject HOA Boards or management professionals to criminal liability. However, SB 655 does underscore how important it is for a HOA to immediately address reports of mold and to take appropriate action. A HOA Board should consider working with the HOA’s attorney to adopt a formal water intrusion/mold policy. That policy would help educate members on their obligations to immediately notify the HOA and its management of the presence of mold within their Units, and would also specify the HOA’s policy in responding to reports of mold.

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We are proud to announce that Artisan HomeownersArtisan Association has selected Tinnelly Law Group as their associations’ legal counsel.

Artisan in Menlo Park features luxury single-family detached homes and townhomes.  Menlo Park is in close proximity to Stanford University and Menlo College, and has a downtown with unique and upscale shops in a pedestrian-oriented atmosphere.

hoa laws Our HOA attorneys and staff look forward to working with Artisan’s Board and management.

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Summer-LakeWe are proud to announce that Summer Lake Owners Association has selected Tinnelly Law Group as their associations’ legal counsel.

Centered around a 25-acre lake, Summer Lake’s Oakley location provides a picturesque California Delta living experience. Close to both the Bay Area and Sacramento, Summer Lake is on the Delta region, next to a thousand miles of natural recreation and water sports.  Residents enjoy recreation centers, parks, a 75-foot pool and miles of trails.

hoa laws Our HOA attorneys and staff look forward to working with Summer Lake’s Board and management.

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hoa-recycled-water*New Legislation

We have blogged about legislation enacted in 2014 that made several changes to Civil Code Section 4735 in response to California’s continuing, record-breaking drought. One of those changes served to prohibit HOAs from fining homeowners for failing to adequately water vegetation or lawns during government-declared drought periods. Earlier this year, AB 349 was signed into law to make further changes to Section 4735. One of those changes served to restore a HOA’s authority to fine homeowners for failing to water, provided that the HOA “uses recycled water…for landscaping irrigation.” (Former Civ. Code § 4735(c).)

Questions then arose as to the circumstances which would allow for a HOA to qualify for this exception and thus be permitted to fine homeowners for failing to water. For example, would a HOA have to use recycled water for all of its landscaping irrigation, or just a portion of its landscaping irrigation? To remedy this ambiguity, AB 786 was proposed this year as an urgency statute based upon the following findings by the California Legislature:

“…some homeowners associations have interpreted existing law to allow them to fine homeowners who voluntarily cease using potable water on their landscaping if the homeowners association itself is using a de minimis amount of recycled water on common areas. This is directly contrary to the state’s need to conserve the precious and dwindling water supplied for urban, agricultural, and environmental needs.”

AB 786 therefore sought to make additional amendments to Section 4735 to clarify that a HOA’s authority to fine homeowners for failing to water during drought periods extends only to situations where the homeowner’s property subject to the fine has previously received, and continues to receive, recycled water for landscaping irrigation. Thus, the Legislature illustrated its original intent to shield only those homeowners who voluntarily cease using potable water for their landscaping irrigation from being fined by their HOAs; homeowners with access to recycled water would still be subject to fines if they failed to use that recycled water for their landscaping irrigation.

AB 786 was signed into law on October 13, 2015 and its changes took immediate effect. Subdivisions (c) and (d) of Section 4735 now state in pertinent parts that:

“(c) Notwithstanding any other provision of this part, except as provided in subdivision (d), an association shall not impose a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during [government-declared drought periods]…”

“(d) Subdivision (c) shall not apply to an owner of a separate interest that, prior to the imposition of a fine or assessment as described in subdivision (c), receives recycled water…and fails to use that recycled water for landscaping irrigation.” (Emphasis added.)

hoa laws AB 786 fortunately resolves yet another ambiguity that was created by rushed legislation. HOA Boards and management professionals whom are opposed to having a sea of “brown lawns” within their communities should consult with their HOA’s legal counsel for guidance.