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Articles Posted in Architectural Control

hoa-artificial-grass-turfNew Legislation*

In recent years the California legislature has proposed bills that would require homeowners associations (HOAs) to permit the installation of artificial turf (grass) in their communities. Those bills never made it into law, and were vetoed by the California Governor due to the Governor’s belief that “[t]he decision about choosing synthetic turf instead of natural vegetation should be left to individual homeowners associations, not mandated by state law.”

AB 349, proposed earlier this year, marked the latest attempt by the California Legislature to restrict the authority of HOAs to prohibit artificial turf. AB 349 was proposed as an urgency statute based upon the following rationale of the California Legislature:

“While in the middle of a water shortage crisis, homeowner associations are not allowing homeowners to make voluntary sacrifices and are still forcing them to maintain grass lawns, by installing artificial grass, and are fining them if they are out of compliance. [AB 349] ensures that all homeowners have the right to better conserve water by voluntarily replacing grass with artificial grass. Property owners who pursue water conservation by installing artificial grass should be encouraged, not sued or fined. Thus, this act is necessary for the immediate preservation of the public peace, health, and safety.”

The prolonged California drought has apparently lead to a reversal in the Governor’s position on this issue and AB 349 was signed into law on September 4, 2015. As a result, Civil Code Section 4735 has been amended to render void and unenforceable any provision of a HOA’s governing documents (i.e., a HOA’s architectural standards) that “prohibits, or includes conditions that have the effect of prohibiting, the use of artificial turf or any other synthetic surface that resembles grass.” (Civ. Code § 4735(a)(2).)

This language was modeled after similar protections already existing in Section 4735 for homeowners seeking to use “low-water using plants.” An additional amendment to Section 4735 as a result of AB 349’s passage includes the incorporation of new subpart (d) that protects homeowners from having to “reverse or remove” water-efficient landscaping measures that were installed in response to a government-declared drought period once the drought period concludes.

hoa laws AB 349’s changes to the law take effect immediately as an urgency statute. HOA boards, architectural committees and management professionals must take note of the changes to Civil Code Section 4735. While AB 349 does not address what types of restrictions (as opposed to flat prohibitions) a HOA may place on the installation of artificial turf, HOAs should endeavor to amend their architectural standards in order to provide some guidance to homeowners on this issue and to deter the use of low quality turf materials.

*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.

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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.

solar-panels-CA-hoa.jpg*New Legislation

The California Solar Rights Act (“Solar Rights Act”), found at Civil Code Sections 714 and 714.1, provides certain protections for homeowners seeking to install solar energy systems (i.e., solar panels) on their properties. The intent of the Solar Rights Act is to prohibit homeowners associations (“HOAs”) from broadly banning solar energy systems for aesthetic reasons–whether through an explicit ban or through onerous architectural restrictions that greatly reduce the performance of solar energy systems, or increase their costs. To that end, the Solar Rights Act renders void and unenforceable any provision of a HOA’s governing documents that “effectively prohibits or restricts the installation or use of a solar energy system.” Civ. Code § 714(a).

The Solar Rights Act does, however, allow for a HOA to place “reasonable restrictions” on the installation or use of solar energy systems. “Reasonable restrictions” are those which do not “significantly increase the costs of the system or significantly decrease its efficiency or specified performance.” Civ. Code § 714(b). In determining what constitutes a “significant” increase in cost or a “significant” decrease in performance in the context of solar panels, the Solar Rights act currently sets those thresholds at a $2,000 and 20%, respectively. Civ. Code § 714(d)(1)(B). Thus, under the text of the current Solar Rights Act, if complying with a provision in a HOA’s governing documents would, for example, only result in a 14% decrease in the system’s performance, that provision would be valid and enforceable. This issue was addressed in the Tesoro case that we blogged about in 2011.

However, the passage of AB 2188 (Muratsuchi) will serve to cut those thresholds in half. Effective January 1, 2015, AB 2188 will amend the term “significantly” to mean an amount not exceeding $1,000 or deceasing the efficiency of the system by more than 10%. AB 2188 will also reduce the thresholds for other types of solar energy systems (i.e., solar heating systems) in a similar fashion. AB 2188 further shortens the timeline for a HOA to review and approve/disapprove a solar energy system application (from 60 days down to 45 days), as well as modify various certification requirements affecting proposed systems.

hoa laws

The current language of the Solar Rights Act severely limits the degree to which a HOA may restrict the installation and use of solar energy systems. However, as a result of AB 2188 and its reduced cost increase/performance decrease thresholds, the ability for HOAs to restrict solar energy systems will be effectively nullified. With the increasing prevalence of solar panels, HOA Boards of Directors and management professionals must be aware of the Solar Rights Act and the likelihood that any substantive architectural restriction on the use of solar panels may not ultimately be enforceable.

HOA-water-intrusion-patio.jpgMost every set of Homeowners Association (“HOA”) CC&Rs contain a provision prohibiting conduct which constitutes a “nuisance.” That conduct often includes “noxious, illegal or offensive activities,” anything which “unreasonably interferes with a resident’s right to quiet enjoyment” and/or “endangers their health or annoys or disturbs” them. We have blogged about how such nuisance provisions may be employed to resolve issues such as the conduct of tenants, activities in the common area, and second-hand smoke transmission. However, a recent unpublished ruling of a California appeals court indicates how nuisance provisions may also extend to situations involving improvements constructed or maintained by a homeowner.

In PGA West Residential Association, Inc. et al., v. Mork (2014) Cal. Ct. App. No. E054276 (“PGA West“), the Defendant homeowners (the Morks) and the Plaintiff homeowners (the Wyatts) owned adjacent, freestanding condominium units within the PGA West Residential Association (“Association”). In 2008, the Wyatts discovered the presence of mold and moisture damage within the interior of their unit. The Wyatts concluded that the water had entered into their unit through an exterior common area wall (“Common Wall”) separating their unit and the Morks’ patio (“Patio”). The Wyatts then sued both the Morks and the Association for violating the restrictive covenants set forth in the Association’s CC&Rs. The Association also sued the Morks for breach of the CC&Rs, breach of contract, and negligence–alleging that the Morks had altered the drainage in the Patio and, as a result, caused water to flow under the Common Wall and into the Wyatts’ unit.

At trial, both the Wyatts and the Association presented evidence that the Morks had altered the original grade of the Patio in the Morks’ course of constructing a swimming pool, sprinkler system and other improvements in the Patio area. The Morks’ conduct resulted in surface water which drained away from the Morks’ unit ultimately collecting into a 2′ wide planter (“Planter”) that extended the length of the Common Wall. In their defense, the Morks argued, among other things, that they were not responsible under the CC&Rs for maintaining the Patio or the Planter–that those areas were designated as “Limited Common Areas” under the CC&Rs to be maintained by the Association…

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hoa-balcony-repairs.jpg*New Legislation

A common legal issue affecting Homeowners Associations (“HOAs”) deals with determining the extent of the HOA’s maintenance and repair responsibilities versus those of its homeowners. Most sets of HOA CC&Rs address the maintenance and repair responsibilities for HOA common areas, the individual units/lots (“separate interests”) owned by the homeowners, and any common areas reserved for a particular homeowner’s exclusive use (“exclusive use common areas”). In the event that the CC&Rs are inadequate or ambiguous in this respect, Civil Code Section 4775(a) sets forth the following default structure:

Unless otherwise provided in the CC&Rs:
(1) the HOA is responsible for “repairing, replacing, or maintaining the common area, other than exclusive use common area”; and
(2) the homeowner is responsible for “maintaining [the homeowner’s] separate interest and any exclusive use common area appurtenant to the separate interest.”

However, there is an ambiguity within this language with regard to exclusive use common area. While “maintaining” exclusive use common area is the homeowner’s responsibility, Section 4775 fails to state who exactly is responsible for “repairing” or “replacing” the exclusive use common area. This ambiguity is often problematic for condominium developments that may have numerous exclusive use common areas, such as exterior windows, reserved parking spaces, patios, balconies, etc.

Industry practice has held that the homeowner is only responsible for the basic upkeep/maintenance of the exclusive use common area’s usable surfaces, while the HOA would be responsible for any major or structural repairs to the exclusive use common area. We previously blogged about this issue in response to a question on balcony repairs within a condominium development.

Fortunately, the passage of AB 968 (Gordon) will serve to codify industry practice. Effective January 1, 2017, Section 4775 will be amended to read, in part, that:

“Unless otherwise provided in the [CC&Rs] of a common interest development, the owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest and the association is responsible for repairing and replacing the exclusive use common area.”

hoa laws

HOA Boards and management professionals must still be aware of the fact that Section 4775’s default structure does not supersede any conflicting provisions in the CC&Rs. Moreover, even when an exclusive use common area is to be repaired or replaced by the HOA, there may be instances where a homeowner should be held responsible for the repair or replacement costs. For example, if damage to common area or exclusive use common area is sustained as a result of the acts of a homeowner, his guests or tenants, most CC&Rs contain provisions allowing (and even requiring) the HOA to levy what is commonly known as a “reimbursement” special assessment against the homeowner to recover the HOA’s repair costs. The authority for a HOA to take such action is also supported by Civil Code Section 5725(a).

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.

hoa laws

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.

irrigation.png

In its third consecutive year of severe drought, California faces a historic water shortage and wildfire danger. According to Mashable.com and US Drought Monitor, “The entire state is in some stage of drought, with 77% of the state suffering from ‘extreme’ to ‘exceptional’ drought conditions.” Matters are expected to worsen, as California continues to experience its hottest year on record.

In response to these conditions, Governor Brown signed an Emergency Drought Proclamation in January 2014 declaring a state of emergency and calling upon all Californians to voluntarily reduce their water usage by 20 percent. As residents of homeowners associations (“HOAs”) began responding to the Governor’s plea by reducing their irrigation, HOAs fined their members for failure to maintain their yards in accordance with the governing documents. This led to swift action by both the Governor and the California Legislature.

In April, Governor Brown signed an Executive Order which effectively prohibits HOAs from fining, or threatening to fine, homeowners “who comply with water conservation measures.” The Order further provides that “any provision of the governing document, architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water-saving measures contained in this directive.” One of these water-saving measures is to limit outdoor watering to no more than twice per week.

The California Legislature is also considering three bills related to drought relief, which would impact HOAs. AB 2100 (Campos) and SB 992 (Nielsen) would prohibit HOAs from imposing a fine or assessment against a member for reducing or eliminating water of vegetation or lawns during a Governor-declared state of emergency, or a local government-declared emergency, due to drought. If passed, these bills would take effect immediately as urgency statutes. AB 2104 (Gonzalez) would provide that a provision of the governing documents, including the architectural or landscape guidelines, is void and unenforceable if it would have the effect of prohibiting low water-using plants as a group, or as a replacement of existing turf, or if it has the effect of restricting compliance with water conservation measures. The California Legislative Action Committee (“CAI-CLAC”) continues to seek amendments to these bills as they work their way through the legislature.

hoa laws

It is important to note that both the Proclamation and the pending legislation are limited to periods of a Governor-declared drought. HOAs are still permitted to enforce other landscape maintenance issues, such as weeds, brush, tree trimming, etc. In addition, HOAs may continue to enforce irrigation provisions, provided they are within the parameters outlined in the Order or as set forth by the local water agency. HOAs considering changes to their architectural or landscape guidelines should seek the advice of their legal counsel.

Blog post authored by Tinnelly Law Group’s Director of Business Development, Ramona Acosta.

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

hoa-committee-meeting.jpg*Asked & Answered

Asked – Our HOA has established several working committees such as Finance and Compliance. Do these committees have to conduct meetings open to the public? Neither one has power to spend money but merely makes recommendations to the Board of Directors.

Answered – No. The provisions of the “Open Meeting Act” (Civil Code §4900) requiring open meetings apply only to “board meetings.” A “board meeting” is defined as “a congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.” Civil Code §4090(a) (Emphasis added). Therefore, provided that the committee is not comprised of a sufficient number of directors so as to constitute a quorum (typically a majority) of the board, the committee’s meetings are not required to be open to the membership.

As illustrated in your question, most committees are purely advisory in nature and provide their findings/recommendations to the board in an open board meeting. Even where a committee does have some decision-making authority (i.e., to approve homeowner architectural applications or expenditures for an ongoing HOA construction project), an “item of business” contemplated by the Open Meeting Act does not include “actions that the board has validly delegated to…. [a] committee of the board comprising less than a quorum of the board.” Civil Code §4155 (Emphasis added). Therefore, if the board has delegated an action or decision to a committee comprised of less than a quorum of the board, the committee’s decision-making authority would not in itself trigger the Open Meeting Act’s requirements.

hoa laws

Even if your committee is not required to hold open meetings, it may be beneficial for committees with decision-making authority to provide notice to the membership and to post an agenda. Doing so will help prevent claims of impropriety on the part of the committee or the board in situations where a member may object to a decision or action by the committee. You should also refer to your HOA’s Bylaws to determine if there are any additional committee requirements.

Blog post authored by Tinnelly Law Group attorney, Terri Morris.

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

rules and regulations california hoa assocaition.png*Asked & Answered

Asked – Are there recognized models of well-written rules and regulations for homeowners associations?

Answered – No, there are not, and the reason is because homeowners association (“HOA”) CC&Rs typically leave the drafting and amending of rules and regulations to the HOA’s Board of Directors. The types of rules and regulations (defined as “operating rules” under the Civil Code) that a HOA may adopt will depend on the language contained in the HOA’s governing documents as well as the unique characteristics of the common interest development. For example, the CC&Rs for condominium developments usually contain provisions explicitly addressing the Board’s ability (and in many cases, the Board’s obligation) to adopt a set of parking rules that regulate the HOA’s finite number of common area parking spaces. By contrast, CC&Rs for single family home projects may broadly state the Board’s ability to adopt rules governing the use of the HOA’s streets.

Here are the common issues that HOA Boards should address in drafting a good set of rules and regulations: common area rules, parking restrictions, noise and nuisance guidelines, trash can rules, pet restrictions, tenant rules, sign restrictions, pool and clubhouse hours, and the association’s disciplinary policy. Many of our clients also choose to include within their rules and regulations a restatement of some of the important restrictions contained in their HOA’s CC&Rs. This provides a valuable “quick reference guide” for residents who may not take the time to read through the entire set of the HOA’s CC&Rs.

The Board may also include a copy of the following policies that are provided to members in the Annual Policy Statement pursuant to Civil Code § 5310 as part of the “quick reference guide:” Architectural Guidelines and Application Procedures, Neighbor-to-Neighbor Dispute Policy, Alternative Dispute Resolution Procedures, Election Policy, and Assessment Collection Policy.

hoa laws

Rules and regulations are a valuable tool for resolving certain issues that are not explicitly addressed in a HOA’s CC&Rs. However, a Board must be aware of the limitations placed upon its rule-making authority under its HOA’s governing documents as well as the Civil Code. Therefore, where a Board’s authority to adopt or amend any particular rule or regulation is unclear, the Board should consult with the HOA’s legal counsel.

Blog post authored by Tinnelly Law Group attorney, Terri Morris.

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