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On April 7, 2017, Governor Brown signed Executive Order B-40-17, ending the drought state of emergency in most of California.  Drought restrictions will remain in effect in Fresno, Kings, Tulare, and Tuolomne counties, which continue to face drinking water shortages and diminished groundwater supplies.  The new Executive Order rescinds the emergency proclamations from January and April 2014, along with four drought-related executive orders.

Over the last few years, the California legislature has passed several bills aimed at water conservation within community associations. AB 2100 amended Civil Code Section 4735 to prohibit associations from fining or threatening to fine an owner for failing to water vegetation or lawns during a state or local government-declared drought.  SB 814 also authorized penalties for excessive residential water use during periods of government-declared droughts. Now that the state of emergency has been lifted, these laws are no longer in effect, provided the local jurisdiction has not declared a local drought.

AB 2104 further amended Section 4735 to restrict an association from prohibiting low-water using plants as a group, and AB 349 amended Section 4735 to restrict an association’s authority to prohibit artificial turf.  Although the drought restrictions have been lifted, this legislation protects homeowners from having to reverse or remove any landscaping measures that were installed in response to the government-declared drought.

The State Water Resources Control Board (SWRCB) also adopted emergency regulations that subject associations to fines of up to $500 per day for violating the provisions of Section 4735.  These regulations will remain in effect until November 25, 2017, or until they are modified or repealed by SWRCB.

The decision to lift drought restrictions was partly based on unprecedented water conservation.  Californians saved more than 20% of urban water since the Governor mandated water use reductions in 2015.  Despite the record levels of water conservation, the State cautions, “This drought emergency is over, but the next drought could be around the corner,” said Governor Brown. “Conservation must remain a way of life.”

Executive Order B-40-17 continues the provisions in the previous Executive Order, “Making Water Conservation a California Way of Life.”  Permanent restrictions prohibit the use of potable water for:

  • hosing off sidewalks, driveway and other hardscapes;
  • washing automobiles with hoses not equipped with a shot-off nozzle;
  • using non-recirculated water in a fountain or other decorative water feature;
  • watering lawns in a manner that causes runoff, or within 48 hours after measurable precipitation; and
  • irrigating ornamental turf on public street medians.
California HOA lawyers The SWRCB will continue to plan for future droughts and promote water conservation as a way of life, which may result in more legislation.  

Blog post authored by TLG Director of Business Development, Ramona Acosta.

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Adult possession and use of marijuana for recreational purposes is now legal in California as a result of the passage of Proposition 64 (“Prop 64”) in 2016. Prop 64 is comprised of sixty-two (62) pages of detailed, complicated, and at times confusing regulations and statutory revisions to various California codes. We have been asked by various homeowners association (“HOA”) clients about the significance of Prop 64 and what impact, if any, it has on their ability to regulate marijuana within their private communities.

Restrictions on Marijuana Smoking
Virtually every set of HOA governing documents contains a provision that prohibits activities which serve as a nuisance to residents within the HOA’s development (i.e., the transmission of “noxious odors”). These provisions have been relied upon by HOAs to restrict smoking (i.e., cigarettes, pipes, cigars, vaporizers, etc.) in common areas and, in some instances, within the separate interests (i.e., the lots or units) that are owned by each of the HOA’s members.  Fortunately, Prop 64 has not altered a HOA’s regulatory authority with respect to the smoking of marijuana. Section 4.6 of Prop 64 (adding Section 11362.3 to the California Health & Safety Code) provides in relevant part that nothing in the statute permitting personal use, possession, cultivation, etc. of marijuana shall be construed to permit any person to “[s]moke marijuana or marijuana products in a location where smoking tobacco is prohibited.” Thus, valid and enforceable HOA restrictions against tobacco smoking may still be used to restrict marijuana smoking as well. Notably, the term “smoke” as used in Prop 64 also includes the use of electronic smoking devices and vaporizers.

Restrictions on Marijuana Cultivation
One of the more interesting issues that HOAs may encounter in the wake of Prop 64 relates to the growing or “cultivation” of marijuana plants. In 2015, new Civil Code § 4750 was enacted to grant homeowners within HOAs the right to use their backyards for “personal agriculture.” Civil Code § 1940.10 was enacted at the same time to clarify that “personal agriculture” as used in Section 4750 means the use of land where an individual cultivates “edible plant crops for personal use or donation,” and that the term “plant crop” does not include “marijuana or any unlawful crops or substances.” Thus, prior to Prop 64’s passage, a HOA’s authority to prohibit backyard marijuana gardens was relatively clear.

Prop 64 appears to have muddied this issue. It added Section 11362.1 to the Health & Safety Code which provides in relevant part that, “notwithstanding any other provision of law,” it is lawful for persons 21 years of age or older to “[p]ossess, plant, cultivate, harvest, dry or process not more than six living marijuana plants.” Some may interpret this language as overriding the Civil Code’s restrictions on the type of “personal agriculture” which may be cultivated in a homeowner’s backyard—especially in light of the fact that marijuana is technically no longer an “unlawful crop or substance.”

Prop 64 also added Section 11362.2 to the Health & Safety Code to allow for restrictions to be imposed on the outdoor cultivation of marijuana. It provides in relevant part that a “city or county” may “enact and enforce reasonable regulations” on the cultivation of marijuana, provided, however, that such regulations may not be used to completely prohibit the cultivation of marijuana “inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.” However, this language appears to empower only cities or counties to prohibit outdoor marijuana cultivation, and does not adequately address whether such prohibitions may also be enacted and enforced by HOAs.

Prop 64 does provide that the rights to cultivate marijuana do not preempt the “ability of an individual or private entity to prohibit or restrict…[the cultivation of marijuana]…on the individuals’ or entity’s privately owned property.” Thus, a HOA’s ability to prohibit the cultivation of marijuana on its “privately owned property”—meaning the HOA’s common area—is relatively clear.  What is less clear is whether a HOA that exists within a city or county that does not restrict outdoor marijuana cultivation may nevertheless impose such restrictions on a homeowner’s separately owned residential lot. In other words, may a HOA restrict the outdoor cultivation of marijuana on property within its development that the HOA technically does not own? For HOAs that exist in cities or counties that do not already restrict the outdoor cultivation of marijuana, there is no clear statutory answer to this question. However, we have encountered instances in HOAs where the smell from marijuana plants and blooms are so strong that they rise to the level of a nuisance which is prohibited under the CC&Rs, and may therefore be restricted on those grounds. HOAs dealing with this issue should seek guidance from their legal counsel.

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sb-814-california-water-usage-hoa-e1484179755582California is experiencing the worst drought in over a century.  As a result, the California Legislature has enacted a number of laws aimed at water conservation.  Existing law requires the Department of Water Resources and the State Water Resources Control Board to take appropriate actions to prevent unreasonable water use.  To further the goal of preventing unreasonable water use, Governor Jerry Brown signed into law new legislation prohibiting excessive water use by residential customers during a drought (SB 814).

Specifically, SB 814, which adds Chapter 3.3 to Division 1 of the California Water Code, requires “urban water suppliers” to “establish a method to identify and discourage excessive water use.”  (Water Code § 366(b).)  Accordingly, a water supplier may adopt one of the following methods: (1) a rate structure using block tiers, water budgets, penalties for prohibited uses, and rate surcharges, or (2) an ordinance, rule or tariff (collectively, “Ordinance”) that defines the procedure by which water suppliers are to recognize and deal with excessive water use.  A violation of an Ordinance is punishable by a fine of at least $500 per one hundred (100) cubic feet of water, or seven hundred forty-eight (748) gallons, above the established threshold.

California HOA laws In light of the foregoing, Associations should be mindful of the new prohibition against excessive water use, especially in condominium projects where the units are not separately metered.

Blog post authored by TLG attorney, Matthew T. Plaxton.

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familyThe U.S. Department of Housing and Urban Development (“HUD”) recently adopted regulations for evaluating claims of harassment in housing and housing related transactions because of race, color, religion, sex, national origin, disability, or familial status under Title VIII of the Civil Rights Act of 1968 (“Fair Housing Act”).  The new regulations, which will directly impact Homeowners Associations (“HOAs”), are set to take effect October 14, 2016.

Brief Background

Both Courts and HUD have long recognized that the Fair Housing Act prohibits harassment in housing and housing related transactions on account of race, color, religion, sex, national origin, disability, or familial status in the same way that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits harassment on these same basis in an employment setting.  Prior to HUD’s adoption of these new regulations, Courts often applied Title VII standards when evaluating claims of harassment in the housing setting.  However, because employment and home settings are different environments, the application of one to another is not always appropriate.  To address these deficiencies, HUD recently adopted formal standards for evaluating claims of harassment under the Fair Housing Act.

The new regulations directly impact HOAs because their directors and officers are the ones who are responsible for investigating an owner’s or tenant’s claim of housing related harassment.  Furthermore, liability for harassment under the Fair Housing Act can be imposed not just on the HOA but on its officers and directors for their own actions as well as the actions of third-party agents like a management company.

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hoa-sober-living-home*Asked & Answered

Asked – We have seen several sober living homes surface within our community. What can our HOA do to prohibit these facilities? Aren’t they businesses which violate the commercial use restrictions in our CC&Rs or other HOA laws?

Answered – Regardless of how you feel about sober living homes, it is certainly a hot issue that numerous communities are dealing with–particularly coastal communities. HOA CC&Rs often contain provisions that prohibit the non-residential uses of properties or the use of properties for anything other than “single family” residential purposes. However, the California Legislature has, through the Health & Safety Code, mandated that a sober living home (an “alcohol or drug abuse recovery or treatment facility“) which services six (6) or fewer persons to be deemed “a residential use of property and a use of property by a single family, notwithstanding any disclaimers to the contrary.” (H&S Code § 11834.25.) This was done in order to immunize sober living homes from City, County and HOA restrictions (i.e., CC&Rs restrictions) on the use of properties for non-residential purposes. The Legislature has even declared it to be the public policy of California to “encourage” the development of sober living homes. To learn more about the law in this area, click here to read our article on FindHOALaw.com.

In situations where a HOA could potentially take action against a sober living home, it is usually because the home is continually violating some other provision of the CC&Rs which the HOA can enforce. However, in our experience, sober living home operators are savvy; they know the playing field and how to keep themselves out of trouble. Moreover, these facilities are generating substantial amounts of monthly revenue from insurance companies and private parties who cover the costs for patients to stay at the home. That revenue dwarfs any potential fines that a HOA might be able to impose for other CC&R violations which may stem from the home’s operations.

Efforts which have been taken by cities against sober living homes have also proven ineffective, largely because recovering addicts are a protected class under the Americans with Disabilities Act (ADA) and other Federal statutes. For example, the City of Newport Beach in 2015 settled a lawsuit brought against the City by several sober living home operators. The operators sued the City over an ordinance it adopted which sought to restrict the facilities’ operations. The operators asserted that the ordinance violated anti-discrimination and fair housing laws. In addition to spending $4 million in legal fees, the City had to pay the sober living home operators $5.25 million as part of the settlement.

hoa laws Any meaningful restrictions to curb the growth of these facilities within private residential communities will likely need to be enacted at the State level (and potentially the Federal level). California HOAs are virtually powerless to do anything and the current options available to cities in regulating/licensing these facilities are relatively weak. 

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

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familyOn January 20, 2015, a tragic fire ripped through a condominium complex in the city of San Juan Capistrano, killing three, injuring six, and displacing eighty residents living in eight units.  The decedents were three of seventeen individuals living in a four-bedroom condominium.  In light of the deaths and their relation to the number of occupants living in the unit, efforts are now underway to examine state and local occupancy restrictions with an eye towards preventing an incident like this from occurring in the future.  To that end, questions have surfaced with respect to an association’s ability to adopt and enforce state and local occupancy standards, as well as to promulgate operating rules regulating the number of occupants living within a unit.

An association’s “operating rules” are regulations adopted by the board that apply “generally to the management  and  operation  of the  common  interest  development  or the conduct  of the business and affairs of the association.” (Civ. Code § 4340(a)) They relate to things such as the use of common area and separate interests, member discipline, and procedures for elections. (Civ. Code § 4355(a)(1)-(7))  In order to be valid and enforceable, the operating rule must meet several requirements: the rule must be (1) in writing, (2) within the authority of the Board of Directors conferred by law or the governing documents, (3) not in conflict with governing law and the governing documents, (4) adopted in good faith and in compliance with the procedural requirements set forth in Civil Code section 4360, and (5) reasonable. (Civ. Code § 4350) Accordingly, presuming that an occupancy rule is adopted by an association’s board of directors pursuant to the powers granted to it under the governing documents, the primary focus is whether the occupancy rule conflicts with governing law (i.e., California law).

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hoa-pet-restrictionOne problem that arises in the context of enforcing homeowners association (“HOA”) governing documents pertains to how consistently certain use restrictions in the governing documents are enforced over time. For example, if a HOA has historically failed to enforce a particular restriction, a decision to enforce that restriction against a particular owner may subject the HOA to claims of “selective enforcement” and/or that the HOA’s enforcements efforts are being exercised in an arbitrary and capricious fashion. These claims not only hinder the cost-efficient resolution of disputes, but could significantly undermine the HOA’s enforcement authority.

It is therefore difficult for a HOA’s Board of Directors to modify the HOA’s enforcement policies over time, especially when it desires to enforce a use restriction that was either never enforced or enforced inconsistently by the HOA in the past. However, the recent unpublished opinion in The Villas in Whispering Palms v. Tempkin (Cal. App. 2015) 2015 WL 2395151 (“Villas”) demonstrates that this difficulty may be overcome through providing proper notice to the HOA’s members and through enforcing the restriction consistently thereafter…

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*New Case Lawhoa-renter-fee.jpg

In the landmark case of Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249 (“Lamden“), the California Supreme Court established what is known as the “Rule of Judicial Deference” or “Lamden Rule” that, in sum, requires courts to defer to decisions made by a HOA’s Board of Directors regarding “ordinary maintenance:”

“…We adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association’s corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors.” (Lamden, at 253.)

However, in a recently published opinion, the Court of Appeals expanded the scope of the Lamden Rule to include additional decisions made by a HOA’s Board, such as those to adopt rules and impose fees on members relating to short-term renters…

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*New Case Lawhoa-attorneys-fees.jpg

Litigation can be a time consuming and costly endeavor. These two factors typically weigh heavily against filing a lawsuit, especially where there is no ability for the party prevailing in the lawsuit to recover its attorney’s fees and costs. By default, the “American Rule” with respect to attorney’s fees awards states that each party must pay for its own attorney’s fees and costs unless otherwise provided by statute or contract. (Code Civ. Pro. § 1021.) Fortunately, in the context of homeowners associations (“HOAs”), Civil Code Section 5975(c) allows for a prevailing party in an action to enforce HOA governing documents to recover its reasonable attorney’s fees and costs. Section 5975 is a component of the Davis-Stirling Common Interest Development Act (“Act”)–the principal body of Civil Code sections governing California HOAs and common interest developments (“CIDs”).

In the recent case of Tract 19051 Homeowners Association v. Kemp (2015) 2015 Cal.LEXIS 1216 (“Kemp“), the California Supreme Court addressed the question of whether Section 5975(c) allows for a prevailing party to recover its attorney’s fees and costs in a lawsuit brought under the Act even where the HOA in the lawsuit is not a CID and thus technically not subject to the Act…

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*New Case Lawhoa-condo-hardwood-flooring.jpg

Homeowners within condominium developments are typically granted broad authority in making improvements to the interior of their respective Units that do not require modification of association common area. However, because of the way in which condominium projects are built, certain improvements made within a Unit may ultimately impact the quiet use and enjoyment of neighboring homeowners (i.e., sound transmissions from hardwood or hard surface flooring). As indicated by the recent case of Ryland Mews Homeowners Association v. Munoz (2015) 234 Cal.App.4th 705 (“Ryland“), to the extent that a homeowner’s interior improvements result in a nuisance to neighboring homeowners, an association does have the authority to compel the homeowner to modify or remove the improvements as necessary to abate the nuisance…

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