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Stone-Harbor-300x169It’s our privilege to welcome Stone Harbor – Bridgeport Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Stone Harbor – Bridgeport is a community of custom single family homes located in the city of Riverside.  Residents enjoy large lots in a beautiful park-like setting.

hoa law firm Our HOA lawyers and staff look forward to working with Stone Harbor – Bridgeport’s Board and management.

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new-hoa-newsletter-39-300x167In case you missed it, Issue # 39 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

  • Workplace harassment in a HOA environment
  • Voter apathy is not a required showing in a petition to reduce CC&R amendment approval requirements
  • Architectural variances binding on future owners
  • Courts will defer to good faith decisions of HOA Boards
  • Recent ruling limits anti-SLAPP protection for HOA Board actions

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.

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Neighbor-Disputes-8-Smart-Tips-to-Legally-Deal-with-Nuisance-Caused-by-Nasty-Neighbors*Unpublished Opinion

The Court of Appeals recently rendered an unpublished opinion in  Harbour Island Condominium Owners Association, Inc. v. Alexander (2019), which provides some clarity regarding a tenant’s right to attend board meetings and the ban on noxious activities within the community.

The Harbour Island Condominium Owners Association (“HOA”) sought a restraining order (known as a preliminary injunction) against two tenants and their landlord to abate the tenants’ noxious behavior.  The HOA relied on the provision in the CC&R’s, which stated that residents cannot disturb the neighborhood or occupants of a neighboring property or create a nuisance.

Neighboring residents made several complaints to the HOA about the tenants’ excessive and purposeful noise: the tenants consistently stomped on their floors and slammed their doors.  In addition to the noise complaints, tenants permitted their dog to urinate in the Common Area, despite the posted “No Dogs” signs.  Lastly, the tenants engaged in aggressive behavior against the Board of Directors in an apparent attempt to intimidate Board Members.  For example, the tenants secretly photographed a Board Member at the pool on different occasions.

The trial court granted the preliminary injunction, ordering the tenants and their landlord to install throw rugs throughout the unit and a sound-muffling device on the doors; to cease photographing Board Members; and to prevent their dog from urinating on the Common Area.  The trial court ruled in favor of the HOA because the tenants’ noxious behavior unfairly oppressed the rest of the community, while the ordered corrective measures were minimally oppressive to the tenants.

The Court of Appeals upheld the trial court’s decision.  Despite the fact that the HOA’s nuisance provision did not mention dogs, the Court broadly interpreted the existing provision to encompass the exclusion of dogs from the Common Area for health and safety reasons.

Furthermore, the Court held that the nuisance provision bans acoustic nuisances that interfere with a neighbor’s right to quiet enjoyment.  In this case, the nuisance claims were supported by credible witness testimony that the tenants’ noise was excessive.

Lastly, the Court of Appeals disagreed with the tenants that their due process rights had been violated since the tenants were not permitted to challenge the violation notices at hearings.  The Court held that only Owners with vested property rights are Members of the HOA.  As such, only Members may participate in HOA meetings.

California HOA lawyers The Harbour Island case highlights the broad reach of nuisance provisions in CC&Rs and serves as a reminder that Owners, not tenants, have the right to attend and participate in HOA meetings. 

-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.

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

Brisbane is a condominium community located in the city of Oceanside.  Residents enjoy a pool, spa, tot lot, and dog park.

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

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

Lexington is a community of new single family homes in Escondido by KB Homes.  These spacious 10,000 square-foot+ homesites are surrounded by rolling hills and offer easy access to nearby parks and recreation.

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

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*New Library Article!

Untitled-1

Workplace harassment and hostile work environments are nothing new for management professionals.  Emotionally charged conversations can become uncomfortable and antagonistic for many managers.  Unfortunately, such dialogue frequently crosses the line from demanding direction to demeaning personal attacks.

Previously, employer liability for employee claims based on nonemployee conduct was generally limited to sexual harassment.  Effective January 1, 2019, newly adopted California law (Senate Bill 1300) lowers the burden by which California employees can bring successful harassment claims against California employers and expands the scope by which those employers may now be responsible to their employees for third party, nonemployee conduct, among other things.

Our HOA attorneys have authored a new article to generally summarize SB 1300 and to discuss its application to common interest development practice.

hoa laws The article, entitled “Workplace Harassment in a HOA Environment,” is available for download from our firm’s library. You can access the article by clicking here.

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imgAmending a HOA’s Declaration of Covenants, Conditions and Restrictions (“CC&Rs”) can be a challenging endeavor. This is true, in large part, to the onerous approval requirements imposed by the CC&Rs themselves. Indeed, many CC&Rs require a super-majority (i.e., 67% or more) of the HOA’s members to approve an amendment. Such requirements make it difficult for an association to pass a proposed amendment, often as a result of member apathy or lack of participation in the voting process.

When this occurs, California Civil Code Section 4275 provides a mechanism for a HOA to “petition the superior court of the county in which the common interest development is located for an order reducing the percentage of affirmative votes necessary for such an amendment.” Section 4275 thus serves to provide a HOA “with a safety valve for those situations where the need for a supermajority vote would hamstring the association.” (Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472).

Accordingly, in order to successfully bring a petition to reduce the percentage of affirmative votes necessary to approve an amendment to the CC&Rs, a HOA must demonstrate the following:

  1. Adequate notice of the proposed CC&R amendment was given;
  2. Balloting was conducted properly pursuant to the CC&Rs and the Act;
  3. Reasonable efforts were made to solicit approval from the members;
  4. More than fifty percent (50%) of the eligible members voted in favor of the amendment;
  5. “The amendment is reasonable[;]” and
  6. “Granting the petition is not improper….”

(Cal. Civ. Code § 4275(c).)

In the recent case of Orchard Estate Homes, Inc. v. The Orchard Homeowner Alliance, the California Court of Appeal rejected an argument brought by a group of homeowners (The Orchard Homeowner Alliance) objecting to the HOA’s petition to reduce the percentage of affirmative votes necessary to amend their CC&Rs. ((2019) ___ Cal.App.4th ___, 2019 Cal.App.Lexis 144.) (“Orchard Estate”) In particular, and relying on the Mission Shores Assn v. Pheil case, the homeowners argued that, in order to prevail on their petition, the HOA must demonstrate that the CC&R amendment failed due to “voter apathy.” ((2008) 166 Cal.App.4th 789, 794-95 (stating that section 4275 of the California Civil Code was to “provide homeowners associations with the ‘ability to amend [their] governing documents when, because of voter apathy or other reasons, important amendments cannot be approved by the normal procedures”).)

The Court in Orchard Estate rejected this argument, noting that the statutory language contained in California Civil Code section 4275(c) clearly and unambiguously identified the “elements required to be established to authorize a reduction in the required voting percentage to amend a provision of the governing CC&Rs.” (Id. at p. **6-7.) As such, the Court was unwilling “to imply an element that was not expressed by the Legislature” based on off-hand statements made in appellate decisions. (Id. at p. *7.)

California HOA lawyers Although the Orchard Estate case appears to make CC&R amendments easier to accomplish, Board members should nevertheless be aware that amending CC&Rs can be an expensive endeavor. Therefore, it is important for Board members to discuss potential CC&R amendments with the HOA’s legal counsel to determine if they are necessary and/or advisable, or if other avenues are available to achieve the Board’s desired result.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.

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East-Garrison-300x169It’s our privilege to welcome East Garrison Community Association to Tinnelly Law Group’s growing family of HOA clients.

East Garrison is a master planned community located on the land formerly known as Fort Or, East Garrison.  Its 244 acres include distinct neighborhoods of new homes within easy strolling distance of a planned town center. Cordell Hull Park, part of Phase I, features a basketball court, playground and large grass field. Lincoln Park, will offer ball fields, picnic and barbecue areas. An Arts District will repurpose historic buildings into what promises to be a vibrant cultural asset for the entire region. Close by are all of the amenities that make the Monterey Peninsula a world-class destination.

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

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

Costa Viva is a condominium community located just minutes to Mission Bay in the Clairemont Mesa region of San Diego. Residents enjoy bay views, amazing amenities, and a peaceful neighborhood.

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

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zoning*Asked & Answered

Asked – We are thinking about granting a variance to the Covenants of our Homeowner’s Association.  The question is:  would the Variance, if granted, apply to the next landowner (i.e., does the grant of a variance run with the land)?

Answered – A homeowners association’s (“HOA’s”) governing documents may permit the HOA to, under limited and extraordinary circumstances, issue a variance from compliance with one or more of the HOA’s architectural standards. Because the decision to grant a variance has been held to be analogous to the issuance of a zoning variance by an administrative agency, HOAs are limited to granting variances in unique and extraordinary circumstances where substantial evidence would justify the desired variance. (See e.g., Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 652, quoting Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517-18.)

For example, and with respect to zoning variances, said variances are granted “only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification.” (Cal. Govt. Code § 65906.) Thus, it is the unique nature of the land and its surroundings which would justify the issuance of a zoning variance, not necessarily the individual desires of the property owner.

Cases which have discussed variances in the context of a HOA have not addressed the issue of whether architectural variances are perpetual in nature (i.e., whether the grant of a variance runs with the land and binds future property owners). As such, and given the Court’s treatment of architectural variances as being analogous to the issuance of a zoning variance, it is important to examine the scope of a zoning variance to determine whether said variance applies individually to the owner of the property when the variance is issued, or if it applies to the property upon which the variance is given and therefore runs with the land.

In Cohn v. County Bd. Of Supervisors, the California Court of Appeal held that a variance from the general plan of zoning for use of property was “not personal to the owner at the time of the grant, but [was] available to any subsequent owner….” ((1955) 135 Cal.App.2d 180, 184, quoting 62 C.J.S. § 547 (now 66 C.J.S. § 472.) In other words, the variance runs with the land and binds future owners. (Id.) Accordingly, given the similar treatment of architectural variances to zoning variances, it is reasonable to conclude that such architectural variances are not personal to the owner at the time of issuance by the HOA, but runs with the land and binds future owners of the property.

In light of the binding nature of architectural variances, there may be circumstances where it would be prudent for the HOA to document such variance through a recorded agreement or covenant. This is particularly important where the HOA’s approval is conditioned upon continued action by the property owners (e.g., maintenance and indemnification). Moreover, although the property owner would have an affirmative obligation to disclose the existence of any variance granted and/or any obligations imposed by the Association in connection therewith (see generally, Kovich v. Paseo Del Mar Homeowners’ Assn. (1996) 41 Cal.App.4th 863), a recorded agreement is the most dependable way of ensuring that future owners are on notice of the existence of the agreement and they assume upon purchase.

California HOA lawyers Board members must be cautious when granting variances to architectural standards, doing so only where extraordinary circumstances warrant. When a variance is granted, the Board should ensure that any conditions imposed on such approval is clearly stated in the Board’s decision, and, in some circumstances, documented in a recorded agreement. Accordingly, the foregoing highlight’s the importance of involving the HOA’s legal counsel to guide the Board in determining whether a variance should be documented by way of a recorded agreement.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.