Articles Posted in Development

Published on:

commercial-CID.jpg*New Legislation

Commercial and Industrial Common Interest Developments (“Commercial CIDs”) in California have historically been governed by the same provisions that apply to planned residential developments and condominiums: the Davis-Stirling Common Interest Development Act (“Davis-Stirling”). However, some of those provisions have resulted in unnecessary burdens and requirements for Commercial CIDs that were really tailored to provide consumer protections for homeowners in residential settings (i.e., open meeting, election and disclosure requirements).

In light of this issue, on September 6, 2013, the California Legislature passed SB752: the Commercial and Industrial Common Interest Development Act. SB752 mirrors many of the provisions contained in Davis-Stirling, but omits some of requirements that were geared toward residential homeowners. For example, SB752 contains provisions governing Commercial CID formation, governing documents, assessments and construction defect litigation, but omits certain Davis-Stirling provisions governing association elections and disclosure requirements.

SB752 was officially signed into law by Governor Brown on October 5, 2013 and will take effect January 1, 2014.

hoa attorney

This is fortunate news for the Commercial CIDs that are becoming more prevalent within the community association industry. SB752 will help to simplify the management and operation of Commercial CIDs and will provide them with a workable framework that is better suited to address their unique needs.

Published on:

smoking-hoa

The problems posed by second-hand smoke have become a burning issue for California homeowners associations (“HOAs”), expecially condominium developments. A HOA typically does have the authority to adopt operating rules that prohibit smoking in common areas and exclusive use common areas; however, those rules may be insufficient to address problems posed by second-hand smoke emanating from inside an owner’s unit. Prohibiting that type of activity generally requires language to that effect contained in the HOA’s recorded CC&Rs. Where there is no such language, HOAs often refuse to get involved and opt to treat those situations as a “neighbor-to-neighbor” disputes.

However, we have written before about how a HOA may have an obligation to enforce the nuisance provisions contained in its CC&Rs to address problems posed by smoking within units. An Orange County jury recently affirmed this fact in the first ruling of its kind in California. The jury in Chauncey v. Bella Palermo Homeowners’ Association, et al., OCSC Case No. 30-2011-00461681, found the defendants HOA and its management company negligent and also found the HOA in breach of its CC&Rs for failing to enforce its nuisance provision protecting the plaintiffs’ rights to their “quiet enjoyment” of their unit. The jury held the HOA liable for doing nothing to abate the alleged nuisance resulting from the second-hand smoke, despite the fact that the CC&Rs contained no provision specifically prohibiting smoking within the units.

hoa attorney More and more municipalities are adopting “no-smoking” ordinances within multi-dwelling residential units. However, where there are no such ordinances, or any similar restrictions contained in a HOA’s recorded CC&Rs, a HOA may be still be obligated to enforce its nuisance provisions to address problems posed by second-hand smoke emanating from the interior of a unit. Where the problems persist, a HOA should consult with its legal counsel and also consider a formal amendment to its CC&Rs to prohibit smoking throughout the entire development.

Content by TLG attorney Terri Morris

Published on:

*New Case Lawhoa law firm residential design professionals architects.jpg

California’s 1st District Court of Appeal recently ruled that “design professionals” may be liable under both common law and Senate Bill No. 800 (“SB 800”) to third party purchasers for construction defects.

In Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP et al., the defendants (the “Architects”) had performed architectural and engineering services, as well as construction administration and construction contract management, for a 595 unit condominium project located in San Francisco. The plaintiff homeowners association (the “HOA”) alleged that multiple construction defects in the project were caused in part by negligent architectural and engineering design. Included in those defects was the presence of “solar heat gain” allegedly caused by the Architects’ approval of cheap and non-functional windows paired with a defective design that failed to provide for adequate ventilation within the units. During periods of high temperatures, the solar heat gain had rendered many of the units “uninhabitable, unhealthy and unsafe.”

The Architects successfully argued at the trial court level that they could not be held liable for the alleged defects because, under common law, the Architects owed no duty of care to third parties (to the HOA or its members). The trial court agreed, holding that the Architect could not be held liable for negligent design and that the HOA was required to show that the Architects had “control” in the construction process; the Architects had to have “assum[ed] a role beyond that of providing design recommendations to the [developer].” Accordingly, the trial court sustained the Architects’ demurrers and the HOA then appealed…

Continue reading

Published on:

hoa lawsOur annual “Legislative & Case Law Update” newsletter for the year 2013 is now available in our library!

The Legislative & Case Law Update provides an overview of the new legislation and case law impacting California Homeowners Associations (“HOAs”) as we head into 2013. The new legislation includes, among other items, bills that impact Bank foreclosures, the re-organization of the Davis-Stirling Act, EV Charging Stations and fees charged by HOAs in producing certain records. The new case law includes rulings that may impact the architectural restrictions placed on the installation of solar panels, arbitration provisions for construction defect disputes, “no-cost” HOA collections contracts, election disputes and defamation claims. The Legislative & Case Law Update also addresses some new Fannie Mae and FHA regulations impacting condominium insurance and certification requirements.

Click here to read our Legislative & Case Law Update (2013)

Have questions on any of the new legislation or case law? Click here to send us a question online.

Published on:

Fire prevention bill.png

Homeowners in California should be expecting a new bill in their mailbox for the calendar year 2011 and onward. The California legislature has passed a controversial new Fire Prevention Fee which will aim to defray the State’s costs for fire prevention services. The new fee–argued by some to be a tax–will affect homes that are considered to be “habitable structures within the State Responsibility Area (SRA)” and within “the area of the state where the State of California is financially responsible for the prevention and suppression of wildfires.” Homeowners can check the Fire Prevention Fee website to determine if their home is located within the SRA area.

The new assessment fee for affected structures will be $150.00 per “habitable structure,” defined as “a building that can be occupied for residential use.” For affected multi-unit condominium buildings, the new regulations assess a fee of $150.00 for the first “dwelling unit” and $25.00 for each additional dwelling unit located within the building.

california hoa

Condominium Associations located within the SRA that consist of multiple units may feel the biggest effect due to the new fees levied on each “dwelling unit.” Such Associations will need to determine how best to structure payment (e.g., paid by the Association as part of its annual budget or paid by each owner individually).

The content of this post was adapted from information provided by CAI’s Legislative Action Committee Blog. To read the original article, click here.

Published on:

*Asked & Answeredhoa law firm

Asked My HOA requires a parking decal to park in the community. Is my HOA allowed to enforce its parking rules on vehicles with handicap parking placards that are parked within designated parking areas, but are without the HOA required parking decal?

Answered – Yes. Typically, homeowners association (“HOA”) governing documents (e.g., “CC&Rs,” “Rules & Regulations”) contain provisions governing how vehicles may be parked in the common area streets or parking spaces. In the event that a parking violation occurs, the HOA has the authority to enforce disciplinary measures against the violating individuals in accordance with the applicable enforcement procedures set forth in the HOA’s governing documents. Although California Vehicle Code §22511.5 permits individuals with appropriate handicap placards to park in handicap spaces, those individuals must still comply with all other HOA parking rules. Individuals generally may not, therefore, circumvent the requirements of an HOA’s parking rules through the use of handicap placards or plates.

hoa attorney

Upon receiving a proper request, a HOA may be required to make “reasonable accommodations” for disabled individuals by designating additional parking spaces as handicap parking spaces. If your HOA has received such a request, the issue should be directed to your HOA’s legal counsel for guidance.

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

Published on:

*Asked & Answereddog-park.jpg

Asked The HOA I manage is considering fencing off a portion of its common area to create a “Dog Park” for the residents to use? Can the HOA do this?

Answered – Maybe. However, our attorneys would strongly discourage the HOA from moving forward with the Dog Park based primarily on the following reasons:

1. Potential Conflict with the HOA’s Governing Documents: The HOA CC&Rs and/or Rules & Regulations may prohibit off-leash pets in common areas. An amendment to the CC&Rs and/or modification of the Rules & Regulations may thus be required so as to resolve any conflicts. While a modification to the Rules & Regulations is fairly easy to accomplish, amending the CC&Rs is often difficult–notwithstanding the expense the HOA will have to incur in the process. Additionally, HOAs are typically prohibited from maintaining anything in the community which serves as a nuisance to the HOA’s residents and guests (e.g., barking dogs).

2. Liability Exposure for the Association: There are many foreseeable circumstances where the HOA would be exposed to liability as a result of the Dog Park. It is not uncommon for dogs and people to be injured while using these types of parks. Having owners merely sign a waiver is not sufficient to completely insulate the HOA from liability–especially considering the likelihood that neighboring, non-HOA residents may try to use the Dog Park.

3. Insurance Concerns: The HOA’s insurance policy may not provide coverage for the Dog Park. Even if coverage is available, our communications with leading HOA insurance professionals echo the liability issues discussed above. Extending coverage to the Dog Park will likely cause an increase in the HOA’s insurance premiums. Moreover, any claims that are subsequently filed as a result of the Dog Park may cause those premiums to skyrocket. The most common Dog Park related claims are those where a dog knocks a person to the ground and causes injury.

hoa laws

It is easy to understand why HOA Boards would desire to install such an attractive and endearing amenity–especially if you are a dog lover like the HOA attorneys and staff in our office. However, installing a Dog Park in a community that was not originally developed with one is likely not a good idea. HOA Boards should consult with their legal counsel to determine what additional issues should be considered in determining whether to move forward with the park.

Published on:

*New Case Lawfence.jpg

Homeowners Association (HOA) developers often reserve certain easement rights for the benefit of the HOA’s members. Such easement rights typically extend over common areas but may also extend to adjoining properties which are not included within the actual HOA development. When those easement rights are threatened or infringed, the recent case of Sumner Hill Homeowners’ Association v. Rio Mesa Holdings, LLC., (2012) (Sumner Hill) illustrates (1) how the HOA can bring an action to protect its members’ interests and (2) what substantial role the development’s tract map can play in adjudicating the members’ easement rights.

In Sumner Hill, residents in a gated community enjoyed access to a private road (Road) that lead to the nearby San Joaquin River. That access was jeopardized when an outside developer (Defendant) built one of its development’s public access paths through the Road and installed a fence which restricted access to the Road by the Sumner Hill residents. The Sumner Hill members believed that the Road was part of the association’s common area and that their easement rights had therefore been violated.

Continue reading

Published on:

homeowners_association*New Resource

Various laws have been established to protect the rights of disabled individuals, such as the Americans with Disabilities Act (“ADA”) and the Federal Fair Housing Act (“FFHA”). These laws govern both public and private facilities, and set forth the degree to which an entity, such as a homeowners association (“HOA”), is responsible for making modifications or improvements to accommodate individuals with disabilities. This blog post is in response to recent client inquiries relating to this issue; it addresses the applicability of each of these laws to HOAs and sheds some light on the potential issues that HOA Boards and Managers should be aware of.

Our HOA lawyers have also published this information in our new resource entitled “Disabled Residents and the Law,” available for download from our library.

Continue reading

Published on:

hoa attorney*New Resource

As communities mature, the need for major repairs or renovations can become a major concern. Often because of unforeseen problems or insufficiently funded reserves, community associations (associations) are not capable of funding the necessary repairs immediately. In order to avoid a piecemeal repair effort in such situations, or the possibility of additional problems arising from the postponement of the repairs, it may become necessary for an association to borrow money. Fortunately, many banks have recognized this need and are willing to lend to associations for major repairs and renovations.

This blog post addresses some of the more frequently asked questions and important issues relating to association borrowing, such as the common reasons for borrowing, what a bank uses for collateral, and what effect the loan has on individual homeowners.

Our HOA attorneys have also published this information in our new resource entitled “Association Repair and Renovation Loans”, available for download from our library.

Continue reading