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

*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.

Canyons-Edge-300x168It’s our privilege to welcome Canyon’s Edge Community Association to Tinnelly Law Group’s growing family of HOA clients.

Canyon’s Edge is a community of single family homes in the large master planned community of Turtle Ridge in the city of Irvine.  With its hilltop setting Canyon’s Edge homes have views of the surrounding mountains and city night lights.  Residents enjoy a large variety of amenities, including an Olympic size swimming pool, spas, cabanas, tennis courts, wading pool and a clubhouse.

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

New-Newsletter-Template-300x167In case you missed it, Issue # 49 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

  • Re-Opening HOA Facilities on an Honor System
  • Addressing Neighbor-to-Neighbor Disputes
  • Property Damage Claim and General Liability Coverage/Denial
  • Request for Installation of Accessory Dwelling Units
  • The Importance of Well-Drafted Short-Term Rental Restrictions

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.

short-term-rentals-300x169-1*Unpublished Opinion

Short term rentals (“STRs”), which are generally defined as rentals for periods of thirty days or less, are lucrative investments that have withstood the economic impact of the pandemic far better than traditional hotels due to the perception of them being a safer alternative. However, STRs in residential homeowners associations are known for burdening said HOAs with a revolving door of transient occupants on vacation who often do not observe the community’s rules, disturb the quiet enjoyment of other residents, who place more wear and tear on community amenities, and who arguably detract from the residential character of the neighborhood. Homeowners associations may restrict such short term, transient use of property through express and explicit provisions contained in recorded Covenants, Conditions and Restrictions (“CC&Rs”).

California case law has upheld HOAs’ authority to restrict STRs. (See Watts v. Oak Shores Community Association (2015) 235 Cal. App. 4th 466.)  However, for such a restriction to be effective, the language in the CC&Rs must explicitly restrict STRs as demonstrated by a recent unpublished California Court of Appeals decision from the Fourth District, Lastavich v. Nob Hill Homeowners Association et al.(Case No. D075466) (“Nob Hill”), which held that the CC&Rs of a four-unit condominium HOA located in the City of Carlsbad did not operate to restrict STRs. The applicable language in the Nob Hill CC&Rs stated that each of the units were to “be used as a single family residence and for no other purpose or purposes.” The Nob Hill CC&Rs notably did not expressly prohibit commercial or business use of the property nor did they expressly prohibit STRs or transient use of the property.

Plaintiff, an owner in Nob Hill, sued the HOA and two other owners who had been regularly renting their units for less than thirty days, to enjoin such STRs claiming that the applicable restrictive language prohibited commercial enterprises including STRs. The trial court entered judgment in favor of the HOA and defendant owners, finding that “short term vacation rentals are not a business and that their use do[es] not violate the CC&Rs.” On appeal, the Fourth District affirmed the trial court’s decision. The appellate court’s decision was based on a “just and fair” interpretation of the CC&Rs conducted in favor of the unencumbered use of the property.  Key to this interpretation were the undisputed facts that the plain language of the CC&Rs allowed for leasing, did not expressly prohibit short term or vacation rentals, did not expressly prohibit business or commercial use of the property (nor did it define STRs as a business or commercial use of the property), that owners had been renting the property on a short term basis for many years out in the open and with Plaintiff’s knowledge, and that the Declarant testified that she did not intend to prohibit or restrict STRs when she established the HOA.

Ultimately, the appellate court held that restrictions on the use of land cannot be “read into” CC&Rs by implication and determined that the CC&Rs did not expressly or implicitly prohibit or restrict the use of the units as STRs. The court noted that to restrict STRs at Nob Hill, the CC&Rs would only need a single sentence in the CC&Rs, when originally drafted in 1986 or as amended, to limit the rental of the Nob Hill units to a certain minimum number of days. The absence of such language presented a fatal defect in Plaintiff’s case.

California HOA lawyers The key takeaway from Nob Hill for community associations is that California HOA’s cannot rely merely on a single-family use restriction in their CC&Rs to operate as a restriction on STRs. STRs do not automatically qualify as a business or commercial use of the property absent language in the CC&Rs defining them as such. Without language specifically prohibiting rentals for thirty days or less, a court will not likely read such a restriction into the CC&Rs. Although the passage of AB 3182, effective January 1, 2021, makes rental restrictions generally unenforceable, short term rental restrictions of thirty days or less are excepted. (Civil Code 4741(c)).  Amending governing documents to comply with this new law by December 31, 2021 is required or HOA’s are subject to fines. (Civ. Code §4741(f)&(g).) Associations are encouraged to contact their counsel, both to comply with this new law, but also to ensure that enforceable, well-drafted STR provisions are incorporated into their CC&Rs in the process of such compliance.

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

IMG_8205*Asked and Answered

Asked Our HOA has recently started receiving architectural applications from owners who wish to install either an accessory dwelling unit (“ADU”) or junior accessory dwelling unit (“JADU”) upon their separate interest. However, our Board of Directors is concerned about the impact of additional traffic within the development and diverging initial intent of our community. Can our architectural committee (“ARC”) deny the applications on that basis?

Answered – Unlikely. On January 1, 2020, California Civil Code section 4751 (“Civil Code 4751”) went into effect and made sweeping changes to the way in which associations may limit its membership from constructing accessory dwelling units or junior accessory dwelling units. Specifically, Civil Code 4751 rendered void and unenforceable any provision of an association’s governing documents that “effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use.”

Additionally, local governmental agencies will be required to process applications within sixty (60) days of their submission. (Govt. Code § 65852.2(b).) Moreover, some applications can receive ministerial approval. (Govt. Code § 65852.2(e).) That means the permit requests can be approved without a hearing notwithstanding any local ordinance regulating the issuance of variances or special use permits. Provided the application for the ADU complies with requirements, the local governmental agency is required to approve the permit as a matter of right. No discretion exists for permit applications that satisfy the governmental requirements.

In addition to the foregoing, Governor Gavin Newsom signed Assembly Bill 3182 (“AB 3182”) on September 28, 2020, which significantly limits the extent to which HOAs may impose rental restrictions and prohibitions. Under AB 3182, the newly codified Section 4741 of the California Civil Code renders void and unenforceable any provision in a governing document (or amendment thereto) “that prohibits, has the effect of prohibiting, or unreasonably restricts the rental or leasing of any of the separate interests, accessory dwelling units, or junior accessory dwelling units in that common interest development to a renter, lessee, or tenant.”

Considering the foregoing, the Association’s discretion in approving and denying ADU and JADU applications have been greatly limited. However, Civil Code Section 4751 does not apply to provisions of an association’s governing documents that impose “reasonable restrictions” on accessory dwelling units or junior accessory dwelling units.

“Reasonable restrictions” within this context refer to restrictions that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an accessory dwelling unit or junior accessory dwelling unit consistent with the provisions of Government Code Sections 65852.2 or 65852.22. (Civ. Code § 4751(b).)  The types of reasonable restrictions on ADUs and JADUs are set forth in Government Code Sections 65852.2 and 65852.22, respectively.

As a result, and to ensure that the Association has a degree of discretion, at least regarding aesthetic features, such as appearance, materials, height, and other visuals, we recommend that the Association work with an architect to prepare and establish architectural guidelines for ADUs and JADUs consistent with the new law. Once created, we then recommend that the Association adopt relevant operating rules or an ADU/JADU policy that will serve to effectuate the restrictions on ADUs and JADUs that are permissible under AB 3182 and incorporate the new architectural guidelines.

California HOA lawyers Contact your HOA attorney to conduct an in-depth analysis of the specific ADU and JADU requirements in your specific county and to prepare related ARC Policies.

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

Altis-300x168It’s our privilege to welcome Altis Master Association to Tinnelly Law Group’s growing family of HOA clients.

Altis is an award-winning active adult community by Pardee Homes located in the City of Beaumont.  Residents enjoy a 16,000 sq. ft. Clubhouse, state-of-the-art Fitness Club and Flow Studio, Resort-Style Pool and Spa, Pickleball Courts, 22 acres of Parks & Natural Spaces, and views of the San Bernardino and San Jacinto mountain ranges.

hoa law firm Our HOA lawyers and staff look forward to working with Altis’ Board and management.
Contact Information