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University-Park-300x168It’s our privilege to welcome University Park Homeowners’ Association to Tinnelly Law Group’s growing family of HOA clients.

University Park is a master planned community of new homes in the city of Chino.  Residents enjoy the community park and close proximity to shopping and dining

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

Fox-Hollow-300x168It’s our privilege to welcome Fox Hollow Community Corporation to Tinnelly Law Group’s growing family of HOA clients.

Fox Hollow is a new community of single family homes by City Ventures.  Located in Santa Rosa, residents enjoy a close proximity to nearby trails and parks, a vibrant downtown area, and easy commute to wine country.

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

*Asked & Answered

hole_in_firewallAsked – Our HOA Board of Directors has become aware of a potential issue with the fire resistive construction in the walls between two condominium units. The Board is split on whether notice to the membership as a whole is warranted at this time, prior to the conclusion of the investigation, given that this potential issue affects a life safety system. Half of us feel that the issue is only technical in nature, while the other half believes that any potential issue should be communicated to the membership. We do not want to unnecessarily alarm the membership or incur thousands of dollars investigating the issue throughout the community if it is not significant, but at the same time we do not want to expose the Board or Association to a risk of liability.

AnsweredThe Board, as fiduciaries to the Association, is obligated to rely on subject matter experts in situations such as these. (Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783.) If the components in question fall within the scope of the Association’s repair responsibilities, the Association has a duty to retain experts to investigate the matter. Given the technical complexity of fire resistive construction systems, and the potential life safety implications, the Association should specifically ask their retained expert to evaluate and comment on whether membership notification of the issue is warranted at this time or whether further investigation is required. Often times, technical violations may exist that do not impair the overall performance of the system, but the Board should not rely on their own intuition or experience to make that determination. Such decisions can only be made after expert recommendations are provided and reviewed by the Board.

California HOA lawyers While a court will defer to a board’s discretion in its decision making, that deference will only apply if the board conducted a reasonable investigation and relied on the advice of experts. (Lamden v. La Jolla Shores Clubdominium Homeowners Association (1999) 21 Cal.4th 249.)

-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.

Fletcher-Ave-300x168It’s our privilege to welcome Fletcher Avenue Community Association to Tinnelly Law Group’s growing family of HOA clients.

Fletcher Avenue is a condominium community located in the city of Orange.  Residents enjoy a community pool, spa, basketball court and barbecue area.

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

Anaheim-Tapestry-Walk-300x168It’s our privilege to welcome Anaheim Tapestry Walk HOA Corporation to Tinnelly Law Group’s growing family of HOA clients.

Anaheim Tapestry Walk is a new condominium community by The Olson Company located in the city of Anaheim.  Residents enjoy a community pool and close proximity to shopping, dining and entertainment.

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

*Asked & Answered

workplace-bullying-1024x683-1Asked – How should our HOA handle a hostile homeowner who is being abusive to other residents and overwhelms management staff with endless emails and other harassing communication?

Answered – We previously blogged about workplace harassment and hostile work environments for management professionals.  Unfortunately, harassment in Associations is becoming increasingly common these days. The COVID-19 pandemic-related difficulties has only heightened tensions and exacerbated this problem by further triggering those with a propensity for such hostile behavior and visceral outbursts.

While most Community Managers have had some experience dealing with abusive homeowners, hostile homeowners tend to exhibit unrelenting behavior that is challenging and highly disruptive notwithstanding management’s best efforts and great work on behalf of the community. They tend to inundate management staff with incessant and baseless complaints regarding perceived or self-inflicted issues, frivolously question Board actions, and are frequently the primary source of widespread tensions that lead to controversies with other residents.

One helpful guiding principle when encountering such hostile homeowners, is to step back and remember that the management company was hired to serve as the managing agent for the Association. Thus, Management’s primary responsibility is to implement the Board’s directives and to serve as a communications liaison between the Board and the residents. For the most part, substantive decisions are made by the Board at the monthly Board meetings. Recognizing this dynamic can assist management staff and the Board when encountering confrontational homeowners. Thus, when responding to emails or other correspondence from such homeowners, Management can simply  acknowledge receipt of the communication, thank the homeowner, and advise them that the Board values resident communication relating to Association business and that you understand their concerns and will forward their communication to the Board for review at the next Board meeting. Then, timely engage the Association’s legal counsel to deal with the problem and to protect the Association’s interests.

If the compulsive emailing or hostile communications persists, then the homeowner can be informed that his/her emails will be blocked by Management and if they wish to send written communication, they send a letter to Management, and it will be placed in the Board packet to be reviewed by the Directors at the next scheduled Board meeting.

While the hope is that Management can get the hostile homeowner under control while memorializing the Association’s good faith efforts to avoid any escalation, the reality is that an overwhelming majority of homeowners who exhibit hostile tendencies will remain unyielding and continue on their ill-advised path until confronted with more serious financial and/or legal ramifications.

Therefore, it is very important that the Board of Directors and Management get the Association’s legal counsel involved as soon as possible in the process. Particularly, the Board should have the Association’s legal counsel send the offending homeowner a formal Cease and Desist letter that fully articulates the misconduct, outlines the basis for the violation, and puts the homeowner on notice that they will be subject to fines and possible legal action if the troubling conduct and violation are not immediately ceased. The letter should preferably also suggest an alternative means of dealing with the purported underlying problem. While this approach generally reaches a good number of offending homeowners, some will inevitably remain undeterred by the formal letter.

If the hostile behavior persists, the Board should consider holding a hearing and start levying fines. Thereafter, and depending on the severity of the ongoing homeowner misconduct, the Board may consider initiating an Internal Dispute Resolution process, or sending a further demand for compliance coupled with a pre-litigation offer of alternative dispute resolution (ADR). These steps will generally resolve the majority of violations and behavioral issues.

California HOA lawyers However, if the homeowner lacks any appreciation for the preservation of his/her financial and legal interests and the bad behavior persists, the Board should seek judicial relief by way of a restraining order, suing the hostile homeowner, and seeking recovery of its legal fees and costs pursuant to the Association’s Declaration. Our expert attorneys stand ready to answer your questions, help resolve your matter involving hostile homeowners or other difficulties, and ensure that the Association’s interests are always protected. 

-Blog post authored by TLG Attorney, Sam I. Khil, Esq.

Torrey-Highlands-300x168It’s our privilege to welcome Torrey Highlands Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Torrey Highlands is a family-friendly neighborhood of single family homes in the city of San Diego.  Residents enjoy close proximity to hiking trails, parks, recreation centers, beaches, equestrian centers, and country clubs.

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

Cerritos-Plaza-Walk-300x168It’s our privilege to welcome Cerritos Plaza Walk HOA Corporation to Tinnelly Law Group’s growing family of HOA clients.

Cerritos Plaza Walk is a new condominium community by The Olson Company located in the city of Cerritos.  Residents enjoy close proximity to restaurants and shopping.

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

downloadRecall elections of individual Board members or of the entire Board are a source of great contention, divide and added expense for HOA’s. Prior to the passage of SB323, which took effect January 1, 2020, recall petitions and elections were already complicated. To add to this complexity, since SB323 became law, some of the Civil Code sections associated with HOA elections now conflict with those of the Corporations Code in the context of recall elections.

According to Corporations Code Sections 7510(e) and 7511(a), assuming at least five percent (5%) of the membership has signed a petition for same, an HOA has twenty (20) days to notice the membership of a special meeting of the membership to vote to recall the Directors and to elect new Directors to replace the recalled Directors if the recall is successful. Corporations Code Section 7511(c) requires that the special membership meeting to recall the Directors be set not less than thirty-five (35) or more than ninety (90) days after receipt of the recall petition.

Civil Code Section 5100(a)(1) states, “Notwithstanding any other law or provision of the governing documents, elections . . . legally requiring a vote, election and removal of directors . . . shall be held by secret ballot in accordance with the procedures set forth in this article.” This means that elections to remove/recall directors and to elect replacement Directors must comply with Civil Code Section 5100 et seq, which was amended via the passage of SB323.

Notably, the required timeline for a recall election set forth in the Corporations Code does not match that of the Civil Code. Specifically, Civil Code Section 5115 proscribes a timeline of at least ninety (90) days to hold an election, assuming an Association’s Election Rules have already been amended to comply with SB323, and which does not include any extra days for weekends or holidays. Therefore, noticing the membership for a recall election within ninety (90) days of the receipt of a recall petition as mandated by Corporations Code Section 7511 is now practicably impossible to satisfy in light of the new elongated Civil Code 5115 required timeline for elections (including recall elections). This is because notice cannot be sent to the membership until the Board and its counsel have reviewed and verified the petition to ensure it meets the requirements of the law and governing documents, which cannot reasonably occur on the same day a petition is received.

Thankfully, the Civil Code provides direction to Boards facing such a morass. Pursuant to Civil Code Section 5100(e), “(i)n the event of a conflict between this article and the provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3(commencing with Section 7110) of Division 2 of Title 1 of the Corporations Code) relating to election [which includes Corp. Code Section 7511], the provisions of this article shall prevail.” This means that when there is a conflict between the Corporations Code and the Civil Code regarding mandated timelines and related notice deadlines for a recall election, Boards must follow the timelines proscribed in the Civil Code.

Although the Civil Code makes it clear that its provisions supersede those of the Corporations Code with regard to recall election timelines, other attorneys have taken a different and what we believe to be an erroneous approach to this conflict by advising HOA’s that the election to recall Directors take place before the election to replace recalled Directors to attempt to satisfy both the Corporations Code and the Civil Code. However, this approach is not advisable for several reasons.

First, Corporations Code Section 7220(b) makes it clear that the recall of a Director means said Director is no longer on the Board. Unless the Bylaws provide otherwise, there is no legal authority for a recalled Director to remain on a Board with any power or authority – even in a limited capacity – once the members have voted to recall or remove said Director. Accordingly, a recalled Director may not serve on the Board in the interim between their removal and the election of their successor because they have already been removed and no longer have any power or authority.

Second, Members may only petition the Board to schedule a special membership meeting, including one to recall Directors, for a lawful purpose pursuant to Corporations Code Section 7510(e). This means that if a petition seeks to partition a recall election from the election of replacement Directors if the recall is successful at a later date, the petition is not for a lawful purpose as Corporations Code Section 7210 and most likely the Association’s governing documents require HOA’s to have a Board of Directors. Recalling a Director without immediately electing their replacement would leave the HOA without a functioning Board of Directors as required by law.

Finally, petitioning members or Boards who allow the vote to recall Directors to proceed within the Corporations Code timeline of 35-90 days of receipt of the recall petition but allowing said recalled Directors to still serve on the Board with limited powers (without legal authority for same as discussed above) until their successors can later be elected under the longer Civil Code Section 5115 timeline expose their Association to legal liability. This is because if the recalled Directors who have no lawful authority are still meeting and making decisions on behalf of the HOA, such as entering into contractual relationships, imposing disciplinary action, etc. these decisions and acts made without proper authority are arguably void under the law. Furthermore, a recall election not conducted in strict accordance with Civil Code Section 5100 et seq. runs the risk of being challenged in court. Pursuant to SB323, judges no longer have discretion in ruling upon such challenges as Civil Code Section 5145 now requires a judge to void any election not conducted in strict accordance with Civil Code Section 5100 et seq, which creates further legal exposure for an HOA attempting to bend the rules.

California HOA lawyers In summary, because of the complexities of HOA elections and especially those for the removal of Directors, HOA’s should contact their legal counsel as soon as a recall petition is received.

-Blog post authored by TLG Attorney, Carrie N. Heieck, Esq.

La-Costa-Ridge-1-300x168It’s our privilege to welcome La Costa Ridge Community Association to Tinnelly Law Group’s growing family of HOA clients.

La Costa Ridge is one of the most prestigious communities of luxury single family homes located in the city of Carlsbad.  Sitting at one of the highest points in Carlsbad, residents enjoy views of the ocean, Catalina Island, and the surrounding open space.

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