Boards of Directors

Davis-Stirling Reorganization Bill Signed! Effective Jan. 2014

Published on: August 20, 2012 | by Steven J. Tinnelly, Esq.

*New Legislation hoa laws

On August 17, 2012 California Governor Jerry Brown signed into law Assembly Bills 805 and 806 and thus ended the California Law Revision Commission’s trek to reorganize the Davis-Stirling Common Interest Development Act (“the Act”). AB 805 effectively relocates the Act to a new Part 5 (commencing with Section 4000) to Division 4 of the Civil Code, while AB 806 cleans up numerical references to the Act contained in various California statutes.

The Community Association’s Institute (“CAI”) is an organization dedicated to providing “information and education to community associations and the professionals who support them.” CAI’s California Legislative Action Committee (“CAI-CLAC”) had a substantial amount of input in the legislative process over the past two years and ultimately supported AB 805 in its final form.

The law does not become effective until January 1, 2014 to provide HOA industry professionals, homeowners, Board Members and attorneys some time to become acquainted with its new reorganized form.

The reorganization purported to clarify current provisions of the Act without making any substantive changes. There are, however, some changes that have been made. Our firm looks forward to assisting our clients and their management in 2013 with understanding those changes and the ways in which they may impact the day to day operations of their communities.

Click here to read CAI-CLAC’s blog post on AB 805.

HOA Prohibiting Single Owners from Renting Out Multiple Units?

Published on: July 23, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Can the Board amend the HOA’s CC&Rs to limit a homeowner who owns multiple units from renting more than one unit unless they live within the HOA?

Answered – Yes. Provided that the requisite procedures are followed and membership approval is obtained, the Board of Directors does have the authority to amend your HOA’s CC&Rs to include such a rental prohibition. However, because the amendment serves to effectively prohibit a homeowner’s ability to rent out a unit (as compared to a less-severe, reasonable restriction on rentals), the California Civil Code limits the degree to which current homeowners would be bound by the prohibition.

Senate Bill 150 added Section 1360.2 to the California Civil Code to insulate certain homeowners from any “provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests” that was adopted by the HOA on or after January 1, 2012. The only homeowners who may be bound by such rental prohibitions are those who bought their homes after the prohibition had already been adopted and in effect, as well as those who consent to being bound by it.

In your situation, an interesting question becomes how would the Civil Code treat enforcement of such a prohibition against a particular homeowner who owned one unit within the HOA before the prohibition was adopted (“Unit A”), and then later, after the prohibition is adopted, purchases another unit in the HOA (“Unit B”)? The language of Section 1360.2 seems to suggest that the rental prohibition would indeed be valid and enforceable against Unit B. However, a thorough assessment of the facts at issue as they relate to the legislative intent behind Section 1360.2 would be necessary to make a more complete determination.

If your Homeowners Association is contemplating the adoption of a new provision to restrict or prohibit rentals, careful consideration must be given to how the Civil Code’s limitations will impact the enforcement of the new provision and whether those limitations will frustrate the homeowners’ goals in adopting it. Consulting with your Homeowners Association attorney will assist in crafting a provision that serves the interests of the homeowners while also preventing costly legal challenges to its enforcement.

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

Fining Homeowners for not Completing HOA Surveys?

Published on: July 13, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered california hoa lawyers

Asked – May our HOA impose fines on homeowners who fail to complete HOA surveys?

Answered – Probably not. In general, a homeowners association (HOA) does have the authority to impose reasonable fines to deter violations of the HOA’s governing documents, as well as any rules and regulations validly adopted by the HOA’s Board of Directors. Liebler v. Point Loma Tennis Club (1995). Even assuming that the survey requirement itself is a reasonable, valid rule adopted by your HOA Board in accordance with the requirements contained in its governing documents and Civil Code §1357.110, fining homeowners for failing to complete the survey is likely to be deemed an unreasonable exercise of the HOA’s authority.

The HOA’s authority to impose fines is premised upon (1) deterring behavior which may damage the interests of the HOA and its members, or (2) reimbursing the HOA for costs it will incur as a result of violations. A homeowner’s failure to complete an informational survey will rarely, if ever, implicate such concerns.

The imposition of disciplinary measures such as fines is often crucial to the success of a HOA’s enforcement efforts. However, the authority to impose fines is not absolute–HOA Boards must comply with the procedural requirements set forth both in their governing documents and the California Civil Code, and furthermore must ensure that the fines at issue are justifiable and reasonable under the circumstances.

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

HOA Board Member Access to Homeowner Mailboxes?

Published on: July 10, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered hoa law firm

Asked – Does our HOA Board President have the right to access our locked mailboxes in order to put a name card on the box?

Answered – No. There are no Federal statutory provisions specifically addressing this situation; however, no one except the homeowner or the postal worker is allowed to open the homeowner’s locked mailbox or even possess the keys. The logical question then becomes why would a Board even have access to locked homeowner mailboxes, notwithstanding any maintenance obligations the HOA may have with respect to the mailbox’s supporting structures. Such access likely violates a homeowner’s privacy expectations. If in using the name cards the Board is seeking to deliver mail matter to homeowners without paying postage, that itself constitutes a violation subject to fine under 18 U.S.C. 1725: “Whoever knowingly and willfully deposits any mailable matter…on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter…with intent to avoid payment of lawful postage thereon, shall for each such offense be fined under this title.”

HOA Boards of Directors should recognize the potential liability that attends violations of state and federal statutes. HOA Boards of Directors should thus consult with the HOA’s legal counsel in situations where the Board’s authority to engage in some desired activity is not clearly provided for in the HOA’s governing documents.

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

Committees: Delegating Board Authority to Achieve Efficiency

Published on: June 13, 2012 | by Steven J. Tinnelly, Esq.

hoa attorney *New Resource

The 2012 amendments to the “Common Interest Development Open Meeting Act” have made it significantly more difficult for Boards to manage the affairs of their HOAs in a quick and efficient manner. Those amendments, as discussed in our previous resource,”Senate Bill 563: Boards and their Business,” made significant changes to the Civil Code, including, (1) revisions to the definition of meeting to include executive session meetings, (2) the inclusion of a new “No Action Without a Meeting” rule, (3) the implementation of a rule prohibiting Boards from considering items of business not noticed on a meeting agenda, and (4) a prohibition on meetings conducted or actions taken through email. As any Board Member or Manager knows, these changes have not only deprived Associations of many of the tools previously used to conduct business outside of regularly held Board meetings, but have also obstructed the channels and methods of communication that are necessary to effectively assign responsibilities and make ongoing mid-project decisions. Although HOAs are unfortunately bound to abide by these requirements, there are devices available to the Board that can significantly decrease the burdens these requirements impose. This blogpost discusses the use of one such device–the committee–and the various ways in which it may be used by Boards to address HOA business within the constraints imposed by the Civil Code.

Our HOA lawyers have also published this information in our new resource entitled “Committees: Delegating Authority to Achieve Efficiency,” available for download from our library.

Rogue Directors: Battling Bad Behavior

Published on: April 13, 2012 | by Steven J. Tinnelly, Esq.

hoa board member *New Resource

Serving as a Director on your HOA’s Board can be a frustrating and thankless job. Raising assessments, enforcing the governing documents, and taking other potentially unpopular actions can lead to disputes and charged emotions. Despite that fact, Directors, as representatives of the Homeowners Association, must conduct themselves in an appropriate manner. Overly aggressive or inappropriate behavior by a rogue Director or officer can give rise to liability for both the Association and the Board. Fortunately, there are mechanisms available to safeguard against liability in such situations and, if necessary, to have the rogue Director removed. This blog post addresses those mechanisms.

Our HOA lawyers have also published this information in our new resource entitled “Rogue DIrectors: Battling Bad Behavior,” available for download from our library.

Challenges to HOA Elections: Facts and Consequences

Published on: April 3, 2012 | by Steven J. Tinnelly, Esq.

homeowners association law.jpg *New Resource

Electing a Board of Directors to manage the Association is a complex and time consuming process. Despite the best of intentions, sometimes things slip through the cracks, whether it’s the qualifications of someone on the ballot or the manner in which votes are collected and tallied. When this occurs, the appointment of a specific director or the election as a whole can be challenged by a member. This blog post discusses the basics of such a challenge, including who has standing to bring a challenge, when a challenge can be brought, and how such a challenge can affect the Association.

Our HOA lawyers have also published this information in our new resource entitled “Challenges to Association Elections: Facts and Consequences”, available for download from our library.