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*Asked & Answeredhoa law firm

Asked My HOA requires a parking decal to park in the community. Is my HOA allowed to enforce its parking rules on vehicles with handicap parking placards that are parked within designated parking areas, but are without the HOA required parking decal?

Answered – Yes. Typically, homeowners association (“HOA”) governing documents (e.g., “CC&Rs,” “Rules & Regulations”) contain provisions governing how vehicles may be parked in the common area streets or parking spaces. In the event that a parking violation occurs, the HOA has the authority to enforce disciplinary measures against the violating individuals in accordance with the applicable enforcement procedures set forth in the HOA’s governing documents. Although California Vehicle Code §22511.5 permits individuals with appropriate handicap placards to park in handicap spaces, those individuals must still comply with all other HOA parking rules. Individuals generally may not, therefore, circumvent the requirements of an HOA’s parking rules through the use of handicap placards or plates.

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Upon receiving a proper request, a HOA may be required to make “reasonable accommodations” for disabled individuals by designating additional parking spaces as handicap parking spaces. If your HOA has received such a request, the issue should be directed to your HOA’s legal counsel for guidance.

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

*Asked & Answereddog-park.jpg

Asked The HOA I manage is considering fencing off a portion of its common area to create a “Dog Park” for the residents to use? Can the HOA do this?

Answered – Maybe. However, our attorneys would strongly discourage the HOA from moving forward with the Dog Park based primarily on the following reasons:

1. Potential Conflict with the HOA’s Governing Documents: The HOA CC&Rs and/or Rules & Regulations may prohibit off-leash pets in common areas. An amendment to the CC&Rs and/or modification of the Rules & Regulations may thus be required so as to resolve any conflicts. While a modification to the Rules & Regulations is fairly easy to accomplish, amending the CC&Rs is often difficult–notwithstanding the expense the HOA will have to incur in the process. Additionally, HOAs are typically prohibited from maintaining anything in the community which serves as a nuisance to the HOA’s residents and guests (e.g., barking dogs).

2. Liability Exposure for the Association: There are many foreseeable circumstances where the HOA would be exposed to liability as a result of the Dog Park. It is not uncommon for dogs and people to be injured while using these types of parks. Having owners merely sign a waiver is not sufficient to completely insulate the HOA from liability–especially considering the likelihood that neighboring, non-HOA residents may try to use the Dog Park.

3. Insurance Concerns: The HOA’s insurance policy may not provide coverage for the Dog Park. Even if coverage is available, our communications with leading HOA insurance professionals echo the liability issues discussed above. Extending coverage to the Dog Park will likely cause an increase in the HOA’s insurance premiums. Moreover, any claims that are subsequently filed as a result of the Dog Park may cause those premiums to skyrocket. The most common Dog Park related claims are those where a dog knocks a person to the ground and causes injury.

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It is easy to understand why HOA Boards would desire to install such an attractive and endearing amenity–especially if you are a dog lover like the HOA attorneys and staff in our office. However, installing a Dog Park in a community that was not originally developed with one is likely not a good idea. HOA Boards should consult with their legal counsel to determine what additional issues should be considered in determining whether to move forward with the park.

*New Case Lawfence.jpg

Homeowners Association (HOA) developers often reserve certain easement rights for the benefit of the HOA’s members. Such easement rights typically extend over common areas but may also extend to adjoining properties which are not included within the actual HOA development. When those easement rights are threatened or infringed, the recent case of Sumner Hill Homeowners’ Association v. Rio Mesa Holdings, LLC., (2012) (Sumner Hill) illustrates (1) how the HOA can bring an action to protect its members’ interests and (2) what substantial role the development’s tract map can play in adjudicating the members’ easement rights.

In Sumner Hill, residents in a gated community enjoyed access to a private road (Road) that lead to the nearby San Joaquin River. That access was jeopardized when an outside developer (Defendant) built one of its development’s public access paths through the Road and installed a fence which restricted access to the Road by the Sumner Hill residents. The Sumner Hill members believed that the Road was part of the association’s common area and that their easement rights had therefore been violated.

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homeowners_association*New Resource

Various laws have been established to protect the rights of disabled individuals, such as the Americans with Disabilities Act (“ADA”) and the Federal Fair Housing Act (“FFHA”). These laws govern both public and private facilities, and set forth the degree to which an entity, such as a homeowners association (“HOA”), is responsible for making modifications or improvements to accommodate individuals with disabilities. This blog post is in response to recent client inquiries relating to this issue; it addresses the applicability of each of these laws to HOAs and sheds some light on the potential issues that HOA Boards and Managers should be aware of.

Our HOA lawyers have also published this information in our new resource entitled “Disabled Residents and the Law,” available for download from our library.

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hoa attorney*New Resource

As communities mature, the need for major repairs or renovations can become a major concern. Often because of unforeseen problems or insufficiently funded reserves, community associations (associations) are not capable of funding the necessary repairs immediately. In order to avoid a piecemeal repair effort in such situations, or the possibility of additional problems arising from the postponement of the repairs, it may become necessary for an association to borrow money. Fortunately, many banks have recognized this need and are willing to lend to associations for major repairs and renovations.

This blog post addresses some of the more frequently asked questions and important issues relating to association borrowing, such as the common reasons for borrowing, what a bank uses for collateral, and what effect the loan has on individual homeowners.

Our HOA attorneys have also published this information in our new resource entitled “Association Repair and Renovation Loans”, available for download from our library.

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charging_station1.jpgIn November of last year we discussed the introduction of Senate Bill 209 (SB 209), in our post entitled, “Electric Vehicle Charging Stations in Your Community?” SB 209 as singed into law could be interpreted to broadly require that homeowners associations (Associations) allow electric vehicle (EV) charging stations on common areas–an apparent violation of existing California laws. Our blog post addressed SB 209’s various defects and deficiencies, and touched on a report by CAI’s Legislative Action Committee (“CLAC”) noting the need for an amendment to the law.

On February 29, 2012, Senate Bill 880 (SB 880) was signed into law as an “urgency statute.” SB 880, effective immediately, is a “clean up” measure intended to (1) correct constitutional flaws posed by SB 209, (2) resolve a conflict with Civil Code Section 1363.07, and (3) correct apparent ambiguities within the language of the statute.

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*New Case Lawhoa_standing2.jpg

It is easy to understand how Homeowners Associations (HOAs) have standing to initiate legal action for enforcement of their governing documents or for damage to the HOA’s common areas. However, under what circumstances may a HOA bring a lawsuit on behalf of its members for claims that the individual members may have against third parties? That question was addressed in the recent case of Glen Oaks Estates Homeowners Association v. Re/Max Premier Properties, Inc., (2012) (Glen Oaks).

In Glen Oaks, the Plaintiff/Appellant HOA sued several realtors (Realtors) who had assisted the developers of Glen Oaks Estates (Project) in marketing and selling its parcels. A significant slope failure occurred along parts of the Project’s common area slopes and driveway in 2005. The HOA’s members (Members) then discovered that the soil reports which analyzed the Project’s common areas were substantially defective and unreliable. Though the Realtors were aware of the defects in these reports, they had either failed to provide these reports to the Members or had provided them without any warning as to their defects. The Members also discovered that the Realtors had violated various statutory disclosure requirements and had either intentionally concealed or misrepresented material information, including providing a false budget with a deceptively low monthly dues statement to the Members during the sales process.

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ev.jpgIn furtherance of California’s energy conservation goals, Governor Brown has signed Senate Bill 209 (“SB209”) which prohibits Homeowners Associations (“HOAs”) from unreasonably restricting the installation of electric vehicle (“EV”) charging staitons in their communities. SB209 will take effect January 1, 2012.

CAI’s California Legislative Action Committee (“CAI-CLAC”) worked with the author of SB209 to ensure that potential issues regarding an HOA’s responsibility and control over these stations would be adequately addressed.
The work of CAI-CLAC was reflected in Governor Brown’s signing message to the California Senate: “The author has assured me that she will pursue legislation that clearly protects the right of [HOAs] to establish reasonable rules for any use of common areas for charging stations.”

The aesthetic concerns over EV charging stations are easy to understand. However, there may be an incentive for a HOA to voluntarily install the stations for use by its members/tenants:
a new revenue stream. Practically every major Southern California utility company offers discounted rates on electricity used to charge EVs. However, according to a recent decision by the California Public Utilities Commission (“CPUC”), “condominium associations that provide electric vehicle charging on the premises as a service to condominium owners…that have not dedicated their equipment for public use” are not regulated as public utilities and therefore not subject to various rate controls when deciding what price to charge for the use of the stations.Thus, a HOA could install the stations for use by its members/tenants and ultimately profit from them.

floodedlake.jpgProperty owners in a partially-built Northern California subdivision may be compensated by the State for flooding damage to their properties.

A Sacramento County Superior Court ruling in April held that the state violated the constitutionally property rights of the property owners by allowing the local lake to flood the surrounding landscape. The California Coastal Commission and the state Department of Fish and Game were managing the lake’s water levels in such a way as to cause flooding to a significant portion of the property owners’ land.

The court ruled that, as a result of the management plan, the state had effectively seized the homeowners land without compensation. The second phase of the trial will require a determination as to the type and amount of damage each property owner will receive from the state.

To read the full story, click here.

It is important for property owners to understand how their private property rights interact with the rights and privileges of state and local municipal bodies.

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