Articles Posted in Rules & Regulations

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water-rain-raindrops-drops

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 Now that the state of emergency has been lifted, these laws are no longer in effect, provided the local jurisdiction has not declared a local drought.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  These regulations will remain in effect until November 25, 2017, or until they are modified or repealed by SWRCB.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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hoa-marijuana-plants

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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hoa-clothesline*New Legislation

Many sets of HOA governing documents contain provisions that prohibit clotheslines from being hung outside of an owner’s unit and/or in any area that is visible from adjoining properties or HOA common area. AB 1448 (Lopez) was proposed earlier this year in order to limit the extent to which such provisions may be enforced. AB 1448 was based upon the belief that bans on clotheslines “prevent low-income families and energy-conscious persons from using a low-cost, low-technology energy conservation tool.” (Senate Floor Analyses, AB 1448 (09/08/15).)

AB 1448 sought to add new Civil Code Sections 1940.20 and 4750.10. Section 1940.20 would limit the degree to which landlords may prohibit the use of clotheslines or drying racks by their tenants, provided that certain conditions are met. Section 4750.10 would place similar limitations on HOAs by rendering void and unenforceable any provisions of a HOA’s governing documents that prohibit or unreasonably restrict an owner’s ability to use a clothesline or drying rack in an owner’s backyard.

On October 8, 2015, AB 1448 was approved and signed into law. As a result, effective January 1, 2016, “any provision of a [HOA’s] governing document…shall be void and unenforceable if it effectively prohibits or unreasonably restricts an owner’s ability to use a clothesline or drying rack in the owner’s backyard.” (Civ. Code § 4750.10(c).) However, as is typically the case with new legislation of this type, Civil Code Section 4750.10 will create additional questions that are not so easily answered with reference to the statutory language itself. Specifically, HOA Boards and management professionals will likely have questions concerning the following issues: (1) what qualifies as a “clothesline” or “drying rack,” (2) what area(s) must owners be permitted to utilize clotheslines or drying racks, and (3) what qualifies as a “reasonable restriction” on the use of a clothesline or drying rack that may still be imposed and enforced by a HOA. Some guidance on these issues is provided below…

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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-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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hoa-garden-rats.jpg*Asked & Answered

Asked – Fallen and decayed vegetables from a homeowner’s garden are attracting numerous rats and other pests. With the new law permitting personal food gardens, is there anything our HOA can do to address this issue?

Answered – Probably. AB 2561, effective January 1, 2015, added Section 1940.10 and 4750 to the Civil Code. In sum, Section 4750 grants homeowners within HOAs the right to use their backyards for “personal agriculture,” regardless of any provisions contained in a HOA’s governing documents to the contrary. However, that right is not absolute. HOAs still have some authority to restrict and regulate personal food gardens in the following respects:

  • Personal Use/Donation Only – The crops must be grown for personal use or donation. Crops grown for sale or other commercial purposes do not fall within the definition of “personal agriculture” for the purposes of Section 4750.
  • No Marijuana or Unlawful Substances – There is no right for a homeowner to grow “marijuana or any unlawful crops or substances,” as those items do not constitute a “plant crop” permitted by Section 4750.
  • Only on Owner Property or Exclusive Use Common Area – The right to keep and maintain personal food gardens extends only to the owner’s backyard or areas designated for the exclusive use of the homeowner (i.e., exclusive use common area patios), not general HOA common areas.
  • Reasonable Restrictions Permitted – The HOA may still impose “reasonable restrictions” on the use/maintenance of homeowner’s yard for personal agriculture. “Reasonable restrictions” are those that “do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.”
  • Clearance of Dead Plant Materials and Weeds – Section 4750 still allows for HOAs to apply rules and regulations requiring that “dead plant material and weeds, with the exception of straw, mulch, compost and other organic materials” that encourage vegetation and soil moisture retention, be regularly cleared from the backyard. A rule or regulation requiring such clearance may be successful in resolving your rodent and pest problem.

As indicated above, the right to have a personal food garden would not necessarily insulate a homeowner from his obligation to comply with related provisions of a HOA’s governing documents that serve as “reasonable restrictions” on the use of a yard for personal agriculture. For example, virtually every set of CC&Rs contains a provision prohibiting homeowner from conducting any activity on their property that poses a nuisance to neighboring homeowners. If the way in which a homeowner’s food garden is being maintained is resulting in a nuisance (i.e., attracting rats and other pest populations), the nuisance provision would likely constitute a “reasonable restriction” that the HOA may enforce against the homeowner.

hoa laws

In addition to the issues noted above, HOAs may, in some instances, have the authority to restrict food gardens that violate other provisions of the Association’s governing documents that serve as “reasonable restrictions” allowable under Section 4750 (i.e., a height limitation within the HOA’s landscaping standards may serve to prohibit crops that grow to unreasonable heights). HOA Boards that are encountering problems with food gardens should consult with their legal counsel for guidance as to how their governing documents may be tailored to address these types of issues.

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

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low-water-plants-HOA.jpg*New Legislation

We have previously blogged about several bills being considered by the California Legislature relating to drought relief. Among them was AB2104 (Gonzales), which has now been signed by Governor Brown and will take effect January 1, 2015. In sum, AB2104 will expand upon the limitations placed upon Homeowners Associations (“HOAs”) in their efforts to regulate “low water-using plants,” as well as incorporate an Executive Order signed by Governor Brown in April of 2014 that prohibits HOAs from fining homeowners for reducing/eliminating the watering of lawns during declared drought periods.

Section 4735 of the California Civil Code previously stated that any provision of a HOA’s governing documents is void and unenforceable to the extent that it “prohibits, or includes conditions that have the effect of prohibiting, the use of law-water using plants as a group.” AB2104 will expand on this language by also voiding any governing document provision (including those contained in a HOA’s architectural or landscaping guidelines) that “prohibits, or includes conditions that have the effect of prohibiting, the use of low-water using plants as a group or as a replacement for existing turf.” (Emphasis added.) Additionally, the inability for HOAs to fine homeowners for failing to adequately water vegetation or lawns during state or local government-declared drought periods will be codified under new subpart (c) to Section 4735.

To read the chaptered text of AB2104 and the portions of Section 4735 which will be amended, click here.

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In the wake of AB2104, questions have surfaced regarding the extent to which HOA’s may still restrict or prohibit the installation of artificial turf. We have previously blogged about this issue, and how artificial turf likely does not constitute a “plant” within the meaning of Section 4735. Additionally, bills which have been proposed by the California Legislature in the past to require HOAs to permit the installation of artificial turf have been vetoed by California governors and ultimately never made it into law. It is unlikely that AB2104 addresses this issue or will otherwise limit the authority of HOAs to regulate or restrict the installation of artificial turf within their communities.

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hoa-scooters2.jpg*Asked & Answered

Asked – We have continued problems with unruly, unsupervised, and destructive children in our community’s common areas. They ride motorized scooters, skateboards, bikes, etc. all throughout our walkways and have collided with people and animals on several occasions. Our property manager said that nothing can be done because any rules aimed at restricting such conduct would be “discriminatory” against children. What are our HOA’s options?

Answered – It is true that Federal and California courts have applied anti-discrimination laws, such as the Fair Housing Act, to homeowners associations (HOAs) in order to prohibit them from discriminating against families with children. There are exceptions, however, in instances where a seemingly discriminatory policy/rule is designed to address legitimate health or safety concerns. Thus, for example, the HOA should be able to adopt a set of operating rules restricting scooters, skateboarding, bicycling etc. in certain common areas where those activities represent a significant threat of personal injury or property damage. Provided that those rules do not single out “children,” but instead apply to all persons in the community, they would likely be deemed reasonable and enforceable pursuant to Civil Code Section 4350.

Additionally, most sets of CC&Rs contain provisions restricting acts which constitute a nuisance. Thus, even in the absence of specific operating rules of the type referenced above, your HOA may still have the ability to address the activities at issue through enforcement of the nuisance provision contained in its CC&Rs.

hoa laws

Your HOA’s Board of Directors should evaluate the situation and determine if there are legitimate health and safety concerns resulting from the activities and/or if those activities are resulting in a violation of the nuisance provision contained in the CC&Rs. If the Board makes a good faith determination that the HOA should take action, it should consult with the HOA’s attorney for guidance as to what enforcement options are available, and how the HOA may adopt or modify its operating rules to restrict specific activities in the common areas.

Blog post authored by TLG attorney, Terri Morris.

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