Architectural Control

Governor Vetoes HOA Artificial Turf Bill

Published on: July 19, 2011 | by Steven J. Tinnelly, Esq.

Congratulations to CAI’s California Legislative Action Committee (“CAI-CLAC”) for successfully working to get Senate Bill 759 vetoed. SB 759 would have required Homeowners Associations to permit the installation of artificial turf in their communities. This marks the second time that such a bill was ultimately vetoed by a California Governor.

SB 759 purported to serve a water conservation goal and was passed by the California Legislature with bipartisan support. The Community Association Industry’s opposition to the bill was based largely on the realization that such a bill would intrude on the self-governance rights reserved for Homeowners Associations.

In his veto message, Governor Jerry Brown stated that “[t]he decision about choosing synthetic turf instead of natural vegetation should be left to individual homeowners associations, not mandated by state law.”

The Governor’s action with respect to this bill serves as an important recognition of the fact that Homeowners Associations are meant to be autonomous, self-regulating entities. Congratulations again to CAI-CLAC for their hard work.

To read CAI-CLAC’s Veto Request Letter, click

Can HOA Enforcement Actions Equate to Discrimination?

Published on: June 8, 2011 | by Steven J. Tinnelly, Esq.

The recent, unpublished opinion in Radell v. Park Wilshire Homeowners Association (2011) illustrates the importance of fully complying with prescribed HOA enforcement procedures. In Radell, the Plaintiffs alleged that the Willshire Bark Homeowners Association (“Association”) Board of Directors (“Board”) “committed a series of discriminatory acts intended to diminish the presence of Puerto Rican women in their upscale condominium building.”

The issue arose out of the Defendant’s use of their maid’s unit for residential purposes– a use which the Board felt constituted a violation of the Association’s CC&Rs. Rather than following the Association’s prescribed enforcement procedures, the Board declined to extend a confidential disciplinary hearing regarding the issue to the Defendants. The Board opted instead to publish the alleged violation to the entirety of the Association’s membership.

To make matters worse, the Board held an unnoticed, confidential Board meeting where they initiated a recall election against the Defendant Board Member. The Defendants then brought a housing discrimination action against the Association under the California Fair Employment and Housing Act (FEHA) and the Fair Housing Amendments Act of 1988 (FHA) by alleging that the Board “engaged in a pattern or practice of discrimination through disparate treatment on the basis of race, ancestry and national origin.”

Though the the holding in Radell primarily touches on Anti-Slapp motions in the context of housing discrimination, it also demonstrates how a Board’s conduct in enforcing CC&Rs can subject an Association to defending costly lawsuits. Boards must be diligent in fully complying with prescribed enforcement policies and procedures when dealing with each and every potential violation.

TLG Secures Injunctive Relief for HOA Client in Dana Point

Published on: April 8, 2011 | by Steven J. Tinnelly, Esq.

TINNELLY LAW GROUP has prevailed in an Architectural Control suit for one of our clients–a HOA in Dana Point, California. The Defendant homeowner installed a window in the second floor bedroom of his residence which overlooked his neighbor’s bathroom, patio and kitchen. Our client’s Architectural Control Committee (“ACC”) had already rejected two previous applications for the window; however, in 2008 the Defendant homeowner installed the window anyway without informing the HOA or submitting an application to the ACC.

As part of its evaluation process, the HOA’s Board of Directors (“Board”) conducted a hearing at which both the Defendant homeowner and his neighbor presented their cases. The Board then performed an on-sight inspection of both residences and concluded that the window did violate the neighbor’s privacy and, as a result, the Board denied the window application. The Board suggested in its denial that the Defendant homeowner submit another application with a modified window which takes the neighbor’s privacy concerns into consideration. When the homeowner refused, the lawsuit was filed and the bench trial was heard on March 10 and 11, 2011.

The trial court ultimately ruled that: (1) the HOA acted within the authority granted to it by its CC&R’s, (2) the HOA’s denial was made after a reasonable investigation, (3) the HOA’s denial was made in the best interests of the community, and (4) the HOA’s denial was made in a non-arbitrary manner. The court ordered that the window be removed and the wall of the residence be returned to its original condition. The court then found that the HOA was the prevailing party and that it was entitled to recover its attorney fees and costs.

We congratulate Bruce Kermott on securing another success in court.

“Bruce Kermott did an excellent job and is to be commended on his thoroughness, marshaling of the records and evidence, and presenting our case to the Judge” – (Client Board Member)

TINNELLY LAW GROUP strives to resolve its clients’ disputes through non-judicial means wherever possible. However, when issues do result in litigation, our clients take comfort in knowing that our attorneys provide the highest quality representation available.

Upholding HOA Architectural Restrictions & Enforcement Procedures

Published on: December 22, 2010 | by Steven J. Tinnelly, Esq.

A HOA’s diligence in detailing its restrictions and in handling its enforcement procedures are vital to ensuring its success in court…

Many disputes arise between Homeowners Associations (“HOAs”) and homeowners over the HOA’s architectural rules and regulations. These disputes often involve enforcement of restrictions on unapproved structural installations, such as windows and doors.

Lawyers are often asked by HOA Boards of Directors and Community Association Management whether or not their HOA’s architectural rules and regulations will be upheld in a court action. The answer is generally yes, provided that the HOA:

• Has established clear guidelines/rules as to acceptable locations for the installation of improvements;
• Has a history of consistent enforcement of their rules and regulations as to all homeowners;
• Has utilized all internal administrative procedures, such as providing a clear an timely denial of an architectural application
• Has, in the event of homeowner noncompliance, used the correct enforcement procedures (such as cease and desist correspondence, disciplinary hearings, Alternative Dispute Resolution, etc.) prior to resorting to litigation.

This process was recently confirmed in the Suprior Court of San Diego County case of Chapala Management Corporation v. Stanton, 186 Cal.App.4th 1532, 2010 (“Stanton”). The homeowners in Stanton refused to submit to the HOA’s architectural rules and regulations when installing new windows. Efforts to resolve the dispute through non-judicial measures were unsuccessful. The court ultimately ruled for the HOA largely because the HOA had demonstrated the elements listed above. The court issued an order allowing the HOA to enter the homeowner’s property to modify the windows, at the homeowner’s expense, if the homeowner voluntarily failed to do so within a specific timeframe. The court also ordered the homeowner to pay the HOA’s attorney’s fees and costs with interest.

Litigation is an expensive option of last resort. However, a HOA may be unsuccessful in resolving a dispute with a homeowner over enforcement of the HOA’s architectural rules and regulations. In such a case, where litigation becomes necessary, a HOA’s diligence in detailing its restrictions and in handling its enforcement procedures are vital to ensuring a beneficial outcome.

To read the full text of the holding, click here.