There is no substitute for expertise. HOA law is what we do.

Gaslamp-City-Square-300x169It’s our privilege to welcome Gaslamp City Square Property Owners’ Association to Tinnelly Law Group’s growing family of HOA clients.

Gaslamp City Square is a mid-rise condominium community located in the heart of San Diego’s Historic Gaslamp Quarter. Located just 3 blocks from San Diego’s Petco Park, residents enjoy a fitness center, pool, spa, sundeck, barbecue and outdoor seating area.

hoa law firm Our HOA lawyers and staff look forward to working with Gaslamp City Square’s Board and management.

*Asked & Answered

court-diagram-photoAsked – Several members of our association have requested that we convert a portion of our common area into a pickleball court. Does your office recommend moving forward with the installation?

Answered – Generally, no. For those who may not know, pickleball is a paddle sport that combines elements of tennis, badminton, and ping pong. Two or four players use solid paddles to hit a wiffleball over a net. It is an activity that can be played amongst all age groups and provides various health benefits and has increased in popularity in recent years. However, with its benefits comes numerous issues.

Considering that pickleball is played with a solid paddle and a wiffleball, it is an extraordinarily loud sport. Moreover, as it grows in popularity, it generally brings large gatherings of people together whose yells and cheers can be heard over great distances. This noise may result in a substantial nuisance to those within earshot and may subject the association to various lawsuits unless the pickleball courts are constructed far out of the earshot of the residences.

Unfortunately, our office has seen many associations attempting to convert croquet lawns, bocce ball courts, etc. into pickleball courts that are centrally located to other amenities provided by the association. These are typically areas which many members regularly visit as a place of quiet enjoyment and relaxation. Unfortunately, this quiet enjoyment could be severely disrupted once the pickleball courts are installed.

Even more concerning is when associations attempt to install the pickleball courts in areas immediately adjacent to residences. The owners of the surrounding homes will be routinely battered with the noise emanating from the pickleball courts. This will no doubt result in substantial frustration to those residents, may have a negative impact on their property value, and will, almost certainly, result in a nuisance lawsuit for the association.

The nuisance created by this loud sport has resulted in various lawsuits and settlement agreements costing associations tens of thousands of dollars and has severely harmed many associations’ financial wellbeing. This, in turn, is then passed back to the membership by way of increased assessments.

As such, if the association decides to move forward with the installation of the pickleball courts , it is not a matter of if, but a question of when a lawsuit may be filed. Thus, unless the association has an area far removed from the residences and other common area amenities, it is likely not worth exposing the association to the increased risk of liability.

California HOA lawyers If your association has any questions as to whether to install a pickleball court in your association, contact your attorney to provide an in-depth analysis to ensure the association is not needlessly exposing itself to liability.

-Blog post authored by TLG Attorney, Corey L. Todd, Esq.

Auburn-Heights-300x169It’s our privilege to welcome Auburn Heights Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Auburn Heights is a new condominium community by D.R. Horton. Located in Anaheim Hills, residents enjoy majestic views of the distant mountains plus the convenience of living just minutes from local shopping, dining and entertainment.

hoa law firm Our HOA lawyers and staff look forward to working with Auburn Heights’ Board and management.

Elara-300x169It’s our privilege to welcome Elara Neighborhood Association to Tinnelly Law Group’s growing family of HOA clients.

Elara is a new community of single family homes by DeNova Homes. Residents enjoy spacious indoor/outdoor living spaces and close proximity to Costa Mesa’s trendsetting retail and lifestyle destinations.

hoa law firm Our HOA lawyers and staff look forward to working with Elara’s Board and management.

*Asked & Answered

temporary-outdoor-fence-privacy-ides-rental-panels-bamboo-backyard_outdoor-patio-and-backyardAsked – Our association has two homeowners that have requested the association’s intervention to assist with resolving a dispute that has arose from damage to a shared wall. Should the Board get involved? Does the Association have any responsibility to cover the cost to repair the shared wall?

Answered – As a general matter, the Association is not obligated to intervene in this neighbor-to-neighbor dispute and is not responsible for covering the cost of the damage to the shared wall (“Party Wall”).

California Civil Code § 4775 provides the general allocation of maintenance responsibilities between associations and individual homeowners as follows, “unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area.” (Civ. Code § 4775(a)(1). Emphasis added.) The code further provides that “[u]nless otherwise provided in the declaration of a common interest development, the owner of each separate interest is responsible for repairing, replacing, and maintaining that separate interest.” (Id. at (a)(2). Emphasis added.)

In this situation, the damaged Party Wall is located between two private lots, not on the Association common area. As such, absent any provision in the association’s governing documents to the contrary, the association has no obligation to repair the Party Wall.

This point is further clarified by California Civil Code § 841(a), which states, in pertinent part: “[a]djoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.” Which, necessarily, would include the damaged Party Wall. This maintenance obligation extends to “reasonable costs of construction…or necessary replacement of the fence.” (Civ. Code § 841(b)(1).)

There may be circumstances where the Board of Directors (“Board”) may sympathize with the homeowners and want to intervene (eg. the damage to the Party Wall was no fault of the homeowners). While this feeling is valid and shows the Board’s virtues, the Board should remember that they are fiduciaries of the Association and must act in the best interests of the association as a whole.

The Board lacks the authority to expend association funds to repair the damaged Party Wall. The association levy’s and collects assessments from its owners for various reasons including among other things, promoting its members’ welfare, improving and maintaining association property, and discharging association obligations under their governing documents. However, covering the cost of the Party Wall, which is a separate interest, would be outside the scope of the association’s authority.

Thus, the association has no obligation or authority to intervene with this dispute and make the repairs to the damaged Party Wall. That burden lies solely with the homeowners.

California HOA lawyers In addition to the above, prudent associations adopt neighbor-to-neighbor dispute policies to offset many disputes that can likely be resolved with effort between the homeowners.

-Blog post authored by TLG Attorney, Corey L. Todd, Esq.

Emerald-Glen-300x169It’s our privilege to welcome The Emerald Glen Homeowners’ Association to Tinnelly Law Group’s growing family of HOA clients.

Emerald Glen is a traditional townhome-style community located in Fountain Valley. Residents enjoy a pool, spa, greenbelt views and a quiet neighborhood.

hoa law firm Our HOA lawyers and staff look forward to working with Emerald Glen’s Board and management.

Manitou-Springs-300x169It’s our privilege to welcome Manitou Springs Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Manitou Springs is a collection of single family homes located behind the gates of the Indian Wells Country Club. Residents enjoy three community pools, four bocce courts, and stunning views of the Santa Rosa mountains.

hoa law firm Our HOA lawyers and staff look forward to working with Manitou Springs’ Board and management.

New-Newsletter-Template-300x167In case you missed it, Issue # 47 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

  • California Legislature Further Limits a HOA’s Right to Restrict Rentals
  • Political Signs and the Limits Imposed on a HOA’s Ability to Regulate Same
  • SB-908 Signed!  Debt Collection Licensing Act
  • Planning for the Unexpected:  Force Majeure
  • Insurance Coverage Denied & Bad Faith Claims

A link to the newsletter is here.

Need to be added to our mailing list? Click here to sign up. Links to previous editions of our newsletter can be found here.

*Asked & Answered

Worker-Holding-Asbestos-174899441-56a4a1903df78cf7728353b4Asked Our HOA Board of Directors has recently decided to undertake some deferred maintenance projects which require wall renovations, such as re-piping the condominium buildings. Must the Association have an asbestos survey conducted prior to commencing the work?

Answered – Yes. The South Coast Air Quality Management District Rule 1403 (“Rule 1403”) requires a survey for the presence of Asbestos-Containing Materials (“ACM”) to be conducted and documented prior to the commencement of any renovation. (See SCAQMD Rule 1403(a).) Moreover, Rule 1403 makes it clear that a survey is required regardless of when the structure was built, the size of the renovations, and whether the owner of the structure is aware of the building materials. (See Rule 1403(d)(1)(A).)

Asbestos is a hazardous air pollutant under Section 112 of the federal Clean Air Act. (6 Environmental Law Practice Guide § 46.09 (2019).) Rule 1403 governs work practice requirements for asbestos in all renovation and demolition activities. The purpose of this rule is to protect the health and safety of the public by limiting dangerous emissions from the removal and association disturbance of Asbestos-Containing Materials (ACM). (See SCAQMD Advisory Notice). Due to the serious implications for exposing individuals to ACM, the survey requirement is mandatory with very limited exceptions.

Rule 1403 requires that the survey must be conducted by a Cal/OSHA-certified inspector or, as permitted by Cal/OSHA, an employee of the facility who possesses an unexpired AHERA Building Inspector certificate from a Cal/OSHA approved course. (See Rule 1403(d)(1)(iv).)

Given the serious health risks and liability associated with exposing HOA Members to ACM, HOA Boards should include asbestos surveys within the project budget and/or ensure that the surveys are included in any vendor contract.

California HOA lawyers Your city or county may require you to apply for a permit to conduct asbestos removal, renovation, or demolition. Contact your HOA attorney to conduct an in-depth analysis of your locality’s specific requirements.

-Blog post authored by TLG Attorney, Corey L. Todd, Esq.

*New Legislation

1200-forclosure-650x405-1

Existing state law provides for the Rosenthal Fair Debt Collection Practices Act (the “Rosenthal Act”), California’s state equivalent of the Fair Debt Collection Practices Act (“FDCPA”). Like the FDCPA, the Rosenthal Act prohibits debt collectors from engaging in specified abusive, unfair, or deceptive practices to collect debts. Violations of the Rosenthal Act are enforceable through a private right of action.

Additionally, existing California State law provides for the Fair Debt Buying Practices Act (“FDBPA”; Civil Code Section 1788.50 et seq.), which requires persons that purchase delinquent or charged-off consumer debt to maintain, and provide upon request, specified documentation proving that the alleged debtor is the individual associated with the original contract or agreement, and that the amount of indebtedness is accurate, among other requirements.

On September 25, 2020, Governor Newsom signed Senate Bill 908, the Debt Collection Licensing Act (“SB 908”), which creates a new licensing law applicable to debt collectors and debt buyers, administered by the Department of Business Oversight (“DBO”), effective January 1, 2022. Moreover, SB 908 provides for licensure regulation, oversight of debt collectors, definitions of terms, application requirements (including criminal background checks), maintaining surety bonds, and other related changes.

SB 908, sponsored by Senator Wieckowski, was presented to ensure greater consumer protection through enhanced oversight over debt collectors and debt buying entities within California. The bill utilizes the foundations contained within the Rosenthal Act and FDBPA.

The goal of SB 908 is to add new a layer of regulatory oversight over debt collectors and debt buyers already subject to state law, but not currently subject to licensure. With the adoption of the bill, debt collectors and debt buying entities must apply for and be approved for a license by the Commissioner of Business Oversight. By requiring debt collectors and debt buyers to comply with licensing requirements, the belief is that the State will be better situated to ensure compliance with existing law.

As for remedial measures, the Rosenthal Act and the FDBPA already authorize private rights of action for violations of these acts. As such, SB 908 contains a limited set of administrative remedies, including desist and refrain authority, the ability to order ancillary relief, and the ability to suspend and revoke licenses. According to the Senate, the lack of civil and administrative penalty authority and citation and fine authority in SB 908 is intended to prevent situations where a licensee could be subject to both a lawsuit by a debtor and to an administrative or civil action brought by DBO for the same violation.

The adoption of SB 908 has several important implications for Homeowners Associations (“HOA”). Notably, the new licensing requirement applies to natural persons, partnerships, corporations, limited liability companies, trusts, estates, cooperatives, associations, and other similar entities. This includes law firms and management companies involved in the collection of debt, including the collection of delinquent assessments. Thus, this bill directly impacts which entities may manage the HOA’s assessment collections.

California HOA lawyers Considering the foregoing, and to avoid the various penalties provided for in SB 908  (i.e. refunds, restitution, disgorgement, and payment of damages, as appropriate, on behalf of a person injured by the improper conduct) all HOAs should ensure that their designated collection vendors are properly licensed by the DBO by January 1, 2022. 

-Blog post authored by TLG Attorney, Corey L. Todd, Esq.

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