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Articles Posted in Enforcement

cs_imageThe rising cost of electricity, environmental considerations, clean energy and tax savings, utility company programs designed to help alleviate the demand on the grid, and the proliferation of affordable residential solar energy systems have made solar power more popular than ever.  Consequently, Associations are seeing a sharp rise in homeowner requests to install solar energy systems.  This presents a particularly unique set of challenges for condominium developments because of their shared roofs and other similar common area components.

Under Civil Code § 714.1, if a condo owner (“homeowner”) wants to install a solar energy system (“solar panels”) on a shared common area rooftop or adjacent garage or carport, Associations can no longer prohibit them.  California law broadly requires Associations to allow homeowners to install solar panels on common area roofs of the buildings in which their unit is located or on the roofs of adjacent carports or garages.  See Civ. Code §§ 714.1, 4600, and 4746.

Moreover, solar panel installations are an exception to the rule requiring 67 percent of membership approval before the Association grants use of any portion of a common area to a particular homeowner.  See Civ. Code § 4600(b)(3)(J).  This Civil Code exception is intended to make solar adoption in condos easier and streamline common area roof installations.

Therefore, any provision of an Association’s governing documents that effectively prohibits or materially impedes the installation or use of solar panels is deemed void and unenforceable.  For instance, Association restrictions that raise the total cost of the solar panels system by more than $1,000 or decrease its performance by more than ten (10) percent from what was originally proposed by the applicant homeowner run afoul of the law and are deemed void.

However, this does not mean that a homeowner can install as many solar panels on the common area roof as he or she desires without consideration of neighbors in the building.  Civil Code § 4746(b) provides that when reviewing a request to install a solar energy system on a multifamily common area roof shared by more than one homeowner pursuant to §§ 714 and 714.1, an Association may impose additional reasonable provisions.

Therefore, if a homeowner wants to install solar panels onto a common rooftop, the Association can require a solar site survey to help determine the breakdown of usable space among all homeowners sharing the roof for potential solar hardware.  See Civ. Code § 4746.  Because each Association is different, it is up to the Board of each Association to decide what is a fair and reasonable equitable allocation of a common area roof.  If practical, each homeowner should get a proportion of the usable roof space that would result in an equal amount of energy output.  This way, rather than the first installer of solar panels utilizing the ideal area(s) of the shared solar roof to the disadvantage of subsequent installers, the above equal allocation approach promotes solar equitable ownership and equal opportunity to the same quantity of solar energy.

If the site survey determines that a rooftop solar system would be impractical or the allocation of shared roof space is untenable, the Association could deny installation.  See Civ. Code § 4746.

In summation, while the Association may not unreasonably restrict an owner’s request and the CA statute expressly allows for such panels on common area roofs, the Association may reasonably attach a series of requirements and conditions pursuant to which the applicant homeowner must: 1) Notify the other homeowners with the shared roof of their desired solar system installation; 2) maintain a liability coverage policy at all times and provide the Association with the corresponding certificate of insurance within 14 days of approval of the application; 3) conduct a solar site survey and provide the Association with a copy of the results, which among other things shall also include a determination of the equitable allocation of the usable solar roof area among all owners sharing the same roof, garage, or carport; 4) bind the owner and all successive owners for costs of maintenance and damages with all repair responsibilities being allocated to the homeowner and his/her successor(s); and 5) require the homeowner’s disclosures to all prospective buyers (and renters) of the restrictions and responsibilities.

The above requirements notwithstanding, the Association should get ahead of potential future issues involving solar panel systems by adopting guidelines addressing the policies and procedures regarding the application and installation of solar panels.  Additionally, Boards should consider requiring the execution and recordation of a maintenance and indemnity agreement whereby the applicant homeowner assumes responsibility for the costs of repairing damage to, among other things, the common area resulting from the installation, maintenance, repair, removal or replacement of the solar panels and all related hardware.  Such an agreement should also address what happens when the System needs to be removed or re-installed to accommodate community-wide roofing projects the Association may undertake in the future.

There are further concerns and other nuances that should be considered for each individual Association to ensure full compliance with the operative laws and effectively mitigate legal exposure.

California HOA lawyers Contact your HOA attorney to conduct an in-depth analysis for your community to ensure compliance with the legal requirements and help prepare a related Solar Policy and Maintenance & Indemnity Agreement.

-Blog post authored by TLG Attorney, Sam I. Khil, Esq.

pexels-kindel-media-7105828Children are usually considered blessings and a joy to be around.  Unfortunately, there is always one slightly rambunctious child who may be prone to causing trouble in Homeowners Associations (“HOAs”).  What should an HOA and/or Board of Directors (“Board”) do in such scenarios?  Is there anything the HOA can legally do?

The U.S. Supreme Court and federal court recognize parents’ constitutional rights to the care, custody, and control of their children.  The Supreme Court explained that the Due Process Clause of the Fourteenth Amendment protects “the right to marry, establish a home, and bring up children.”  (Meyer v. Nebraska (1923) 262 U.S. 390.)

While we understand that disturbances to other members and common areas caused by a child might place everyone in a state of discomfort, the HOA should not interfere in situations where parental rights might be in question—especially in situations where there have been no obvious or implied threats to the community members’ health and safety.

Even should management report the incident(s) to the police (on the theory that the child might be a danger to the community) or child protective services (on the theory that the child might be in an unhealthy home environment causing the child to act in such a way), it is unlikely for the government to take any action beyond filing a report at such an early stage.  Unless the situation is dire, the government usually prefers to remain out of familial matters.  The Second Circuit held “[T]he right of the family to remain together without the coercive interference of the awesome power of the state . . .encompasses the reciprocal rights of both parent and child.” (Duchesne v. Sugarman (1977) 566 F.2d 817, 825.)  The Supreme Court held that even after parents are found unfit in a contested court proceeding, they retain constitutionally protected parental rights. (Santosky v. Kramer (1982) 455 U.S. 745.)

HOAs should not assume the powers of the U.S. government and place themselves in a situation of interference with parental rights.  Such a scenario could cause unwanted liabilities for HOAs.  If the child at question has a disability/special needs, that child and its family would be a protected class under the law.  Protected classes may not be discriminated against and, in most cases, may be granted reasonable accommodations from governing document provisions.  The parents and child might sue the HOA for discrimination and harassment, especially if the parent of the child has already warned the HOA to refrain from approaching the parent and/or child.  Such a lawsuit would not be favorable to any HOAs.

Accordingly, we advise HOAs to proceed with caution and to start with a simple reminder of obligations letter to the Owner of a property within community if the Board believes it would be in the best interests of the HOA to take action (i.e., benefit the health and safety of all HOA members/residents).  It might even be better to wait until another incident with the child occurs before sending the reminder of obligations letter.

California HOA lawyers Of course, should any individual member feel as if their safety is being compromised at any time, we would recommend for the Board to inform that specific member to contact local law enforcement authorities to file an appropriate report.  Barring any such scenario, we would advise for HOAs, as entities, to refrain from all involvement pertaining to parental rights unless absolutely necessary.

-Blog post authored by TLG Attorney, Vivian X. Tran, Esq.

Man-yelling-at-women-300x200-1Board Members are tasked with the difficult job of enforcing the Association’s rules and regulations against non-compliant Members. Unfortunately, this often creates tension between Board Members and Members. In some circumstances, this tension turns into unlawful harassment. When this occurs, Board Members should consider the available legal remedies provided under both California law and their homeowners association’s governing documents in order to protect themselves and abate the harassing conduct.

Generally speaking, a restraining order will provide Board Members with the most immediate relief and protection. This is because the California Code of Civil Procedure requires judges to review and rule on requests for Temporary Restraining Orders within the next business day of filing for the same. (Cal. Code Civ. Proc., § 527.6(e).) (Although, Temporary Restraining Orders only remain in effect for a period not to exceed twenty-one [21] days. Before issuing Permanent Restraining Orders, courts must first allow the parties to present their sides of the story at hearings.)

There are two types of restraining orders that Board Members may consider depending on the nature of the alleged harassing conduct. The most common type of restraining order is a Civil Harassment Restraining Order. To prevail and receive a Civil Harassment Restraining Order, the Board Member must prove that the alleged harasser engaged in one of the following forms of unlawful harassment:

  1. unlawful violence (i.e., assault, battery or stalking as defined by the California Penal Code);
  2. a credible threat of violence (i.e., a statement or course of conduct that places a reasonable person in fear for their safety or the safety of their immediate family, and that serves no legitimate purpose); or
  3. a course of conduct directed at the Board Member that seriously alarms, annoys, or harasses the Board Member and causes the Board Member to suffer from substantial emotional distress (and would also cause a reasonable person to suffer substantial emotional distress), and that serves no legitimate purpose.

On the other hand, homeowners associations (as corporations) may consider filing Workplace Violence Restraining Orders against the alleged harasser on behalf of its Board Members. According to the California Code of Civil Procedure, Board Members are considered “employees” of homeowners associations for the limited purpose of Workplace Violence Restraining Orders. (Cal. Code Civ. Proc., §527.8(b)(3).) To prevail and receive a Workplace Violence Restraining Order, the homeowners association must prove that the Board Members (or any other employee as defined by the Code of Civil Procedure) suffered:

  1. unlawful violence (i.e., assault, battery or stalking as defined by the California Penal Code); or
  2. a credible threat of violence (i.e., a statement or course of conduct that places a reasonable person in fear for their safety or the safety of their immediate family), that can reasonably be construed to be carried out or to have been carried out at the workplace, and that serves no legitimate purpose.

If after a hearing on the merits, the Court finds that unlawful harassment has taken place, then the judge may issue a Permanent Civil Harassment Restraining Order for up to five (5) years or a Workplace Violence Restraining Order for up to three (3) years. However, the Code of Civil Procedure only permits Courts to award the prevailing party its attorneys’ fees and costs in lawsuits for Civil Harassment Restraining Orders, not Workplace Violence Restraining Orders.

Finally, in some circumstances, a Member’s harassing conduct toward the Board may constitute a nuisance, as defined by the homeowners association’s CC&Rs. In those situations, the homeowners association may consider bringing an unlimited civil action lawsuit against the offending Member to enforce the homeowners association’s governing documents. Board Members should keep in mind that this type of civil litigation is often more costly and the potential relief is not usually as immediate. Furthermore, the alleged harassment must satisfy the definition of a “nuisance,” as set forth in the governing documents.

California HOA lawyers If Board Members believe that they are being harassed as a result of their service on the Board of Directors, they should consult with the Association’s general counsel to determine the most effective way to address the problem. Each situation must be evaluated on a case-by-case basis to determine whether the facts meet the legal definition of “unlawful harassment” or a “nuisance.” Of course, Board Members should immediately contact their local law enforcement agencies if they believe that their safety and wellbeing is at risk.

-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.

what-to-expect-when-youre-expecting-backyard-chickens-featureIt is becoming increasingly popular to raise chickens in suburban and even in urban areas. Chickens offer a continuous source of fresh eggs and arguably help with pest control. Conversely, chickens can be loud, messy, attract coyotes, and arguably are best suited for rural, country life. Because many municipalities have legalized raising chickens in residential zones, HOAs are more frequently encountering owners maintaining chickens in their communities, some even allowing their chickens to roam the common area alongside the family dog.

If the HOA’s governing documents prohibit chickens (also referred to as poultry or livestock), the HOA may require residents to remove their feathered friends from the community. It is important to note that while municipalities may allow a limited number of domesticated chickens in residential zones, it is well-established that an HOA’s governing documents may be more restrictive than local ordinances. So, if the county or city allows chickens, but the more restrictive governing documents do not, the governing documents control.

Chickens may also be prohibited by nuisance restrictions contained in the governing documents. The aforementioned noise produced by roosters along with frequent, malodorous, and non-solid waste arguably constitute an ongoing violation of nuisance restrictions sufficient to require the chickens’ removal.

Oftentimes, when an HOA requires the removal of a prohibited animal, requests to allow the animal to remain on the premises as an emotional support animal (“ESA”) arise. Under the federal Fair Housing Act, which applies to homeowners associations, a housing provider is required to make reasonable accommodations for assistance animals including ESA’s even though they are not trained to do work or perform tasks.  Allowing an emotional support animal which would otherwise be prohibited under the Association’s governing documents is a recognized type of reasonable accommodation for a disability under California’s Fair Employment and Housing Act. (Auburn Woods HOA v. FEH Commission (2004) 121 Cal App. 4th 1578).

California HOA lawyers Chickens are not typical ESA’s like dogs or cats, but the creativity of Americans is without bounds as evidenced by the wide variety of alleged ESA’s seen on commercial flights including peacocks, turkeys, pigs, monkeys, and hamsters. Due to the complex legal issues and potential exposure to liability associated with reasonable accommodation requests, it is recommended to contact legal counsel immediately if a resident requests to keep a chicken or any other otherwise-prohibited animal due to a disability or medical condition.

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

*Asked & Answered

chapter-13-bankruptcy-filing-rules-1068x713-1Asked – Our HOA Board of Directors has been advised that a homeowner who is delinquent in their payment of assessments has filed bankruptcy. If the homeowner obtains a bankruptcy discharge does the HOA have to write off the delinquent account as a bad debt?

Answered – Not necessarily. While a homeowner declaring bankruptcy affords them various protections from creditors attempting to collect debts, such as the imposition of an automatic stay, the Association is not necessarily without recourse if the Homeowner achieves a discharge.

The most common two (2) types of bankruptcy actions that may impact an HOA’s collection of delinquent assessments are Chapter 7 (liquidation) and Chapter 13 (repayment plans). Each type of bankruptcy filing has varying attributes that may uniquely apply to an HOA.

Regardless of which type of bankruptcy a homeowner files, the Association should immediately split their account into two (2) pre-petition debts (i.e. those that occurred before the bankruptcy filing) and post-petition debts (those accrue after the filing). This is an important action because a discharge can only relieve a homeowner of the personal obligation to pay the pre-petition debts. However, the homeowner would still be obligated to pay the HOA all post-petition debts. (See 11 U.S.C. § 523(a)(16).)

For a homeowner who achieves a discharge of the homeowner’s personal obligation to repay pre-petition debts, a discharge would not affect the HOA’s assessment lien or judgment lien with the right of judicial foreclosure that was recorded prior to the bankruptcy filing. Because the liens are recorded against the homeowner’s property, they are non-dischargeable in the bankruptcy case. As a result, once the homeowner achieves the discharge, the HOA can still proceed with foreclosure of the property and satisfy the delinquency through that mechanism. This may also incentivize the homeowner to enter into a reaffirmation agreement to voluntarily repay the pre-petition debts to avoid foreclosure of the HOA’s lien.

Considering the foregoing, it is incumbent on all Boards to ensure that they secure a homeowner’s debt through an assessment lien to ensure, among other reasons, that the HOA still has recourse against a homeowner who declares bankruptcy and obtains a discharge.

California HOA lawyers Contact your HOA attorney to conduct an in-depth analysis of the specific bankruptcy case to determine how the HOAs interests will be best served, including the filing of proof(s) of claim to receive disbursements under the active bankruptcy plan.

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

cost-of-DWI*Asked and Answered

Asked – How long should homeowners associations levy compliance fines against non-compliant Members before transferring the files to legal counsel?

Answered – Monetary penalties (also known as “fines”) should be levied against non-compliant homeowners so long as the purpose of the fines is to deter the homeowners’ unwanted behavior and resolve their outstanding violations.  Fines should never be levied to punish the homeowners or raise money for the association.  As soon as it becomes clear that fines are not effectively compelling compliance with the governing documents, the Board of Directors (“Board”) should consider alternative enforcement strategies, like Alternative Dispute Resolution (“ADR”) or litigation, in lieu of continued fines.

Associations have a duty to enforce their governing documents. (Nahrstedt v. Lakeside Village (1994) 8 Cal.4th 361, 383.) Typically, the governing documents also grant the Board with rulemaking authority, which impliedly authorizes the Board to compel compliance with those rules by imposing monetary penalties. (Liebler v. Point Loma (1995) 40 Cal.App.4th 1600, 1613.) All fines must be levied in accordance with the association’s published fine schedule, which should be distributed to Members in the annual policy statement.

In order for compliance fines to be enforceable, the Board must ensure that the fines are reasonable.  There is no bright line rule to make this determination.  Instead, the Board must consider whether the fine amount actually serves to deter homeowners from violating the governing documents.  This requires Boards to tailor the fines to the demographics of their communities. What is reasonable in one community may not necessarily be reasonable in another.

If, after imposing several fines, an association is not able to compel a homeowner to comply with the governing documents, then the Board should not continue to levy additional fines. Otherwise, the association may be unable to collect those fines, as they were not reasonably levied to compel compliance.  Similarly, Boards should consider waiving previously imposed fines after homeowners comply and resolve their outstanding violations, as the fines served their intended purpose.

California HOA lawyers Homeowners associations should ensure that they adhere to their reasonable fine schedules, which were designed to compel homeowners to comply with the governing documents.  However, as soon as it becomes clear that monetary penalties are not effective deterrents, then the outstanding matters should be transferred to legal counsel for further review and advisement.

-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.

parking-tips

*Asked and Answered

Asked Can Homeowners Associations Restrict Parking on Public Streets?

Answered – Possibly.  The restrictions set forth in the CC&Rs are known as equitable servitudes that “run with the land.”  This means that when an owner takes title to the property, he is automatically bound by the restrictions in the CC&Rs, which are recorded against his property. Those restrictions continue to burden and benefit every successive owner, who later takes title to the property.

The CC&Rs contain restrictions pertaining to the maintenance of the encumbered land, but they also contain restrictions that regulate how members can use the land. When dealing with parking restrictions that attempt to regulate the aesthetics of the community, a reasonable argument could be made that the restrictions apply to all member conduct, regardless of whether that conduct occurs on private or public streets within the development.

California courts have not yet published caselaw to address this issue.  There is, however, an unpublished case from 1978, Lake Forest Community Association v. Noble (Orange County Superior Court No. 197563), in which the California Court of Appeal found that private parties can regulate parking on public streets in order to protect the association’s property values.  In this case, the homeowner was parking a truck camper on the public street in front of his property in violation of the CC&Rs.  The Court found that the homeowner was contractually obligated, via the CC&Rs, to refrain from parking his truck camper anywhere within the community, including the public streets.

Since this case was not published, it is not controlling law.  This means that another California judge might rule differently.  Although, homeowners associations have reasonable grounds to assert that the parking restrictions in their CC&Rs apply to member conduct on both public and private streets within the community in order to preserve the property values.

California HOA lawyers CC&Rs restrictions dealing with parking vary greatly from association to association; therefore, the Board of Directors should first consult with an attorney to determine whether they will be able to successfully enforce parking restrictions on public streets within the development.

-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.

Due-ProcessRules are meant to be followed.  However, some homeowners unknowingly or knowingly violate these rules.  What should an association do under these circumstances?

First and foremost, every association should have clear disciplinary and enforcement procedures (i.e., due process) regarding the handling of a homeowner’s violation of the association’s governing documents (Civil Code section 5850(c)).  Think of associations as miniature governments in which each homeowner would have certain constitutional rights associated with their life, liberty, and property.  Due process refers to the fact that in such matters, the association must provide homeowners with notice of the violation, the opportunity to be heard, and a decision upon neutral analyzation by the association (Civil Code section 5855).

For due process to be effective any disciplinary procedures and enforcement of such must be clearly delineated in a policy.  The purpose of such a policy is to ensure the association will not arbitrarily or capriciously adjudicate enforcement matters.  The enforcement policy should include:

  • The method of how to report violations, whether by a homeowner or association agent (i.e., patrol, Board member, violations committee). Usually, associations have management companies and require that all reported violations be submitted in writing or email to management first.
  • Clear steps on what is to occur when a violation is noted. An association might decide to send an initial courtesy violation notice to the homeowner stating the observation of a violation.
    1. If so, the association should include: (1) details of the violation (i.e., when, where, who, what, how); (2) cite the association rule(s) the homeowner violated; (3) include a photo or photos of the violation; and (4) request compliance within a specific amount of days. The time period for the homeowner to rectify the violation may vary depending on the nature of the violation, but the association should always adhere to what would be considered reasonable under the circumstances.  Additionally, the association should mention that should the violation not be rectified, the homeowner may be fined pursuant to the association’s fine schedule.
    2. The association’s fine schedule should detail: the different categories of violations, fine to be assessed for each type of violation, and fines associated with repeated offenses. Please note that different categories of violations may have different fine schedules so that the fine fits the type of violation (e.g., short-term rental fine versus nuisance fine).
  • If the initial courtesy letter does not prompt the homeowner’s compliance, the enforcement policy may delineate whether the association will be sending either another violation notice detailing a shorter period of time to correct the violation OR a notice regarding the hearing when the Board is to meet to consider or impose disciplinary measures upon a member pursuant to Civil Code section 5855 and Corp. Code section 7341(d).
    1. The second violation/hearing notice should detail the violation in the same manner as the initial courtesy violation notice.
    2. Note that the association must notify the homeowner of a hearing in writing and deliver the notice pursuant to Civil Code section 4040 at least ten (10) days prior to the meeting at which fines may be imposed, or at least fifteen (15) days prior to the meeting at which the association may suspend the member’s common area use privileges. A homeowner must have an opportunity to be heard and present their case to the association before they may be disciplined.
  • If disciplinary measures or a monetary penalty is imposed, the association must provide written notification of this decision pursuant to Civil Code section 4040 within fifteen (15) days following the action.
  • If levying a fine upon the homeowner in accordance with the association’s fine schedule does not induce the homeowner’s compliance, the enforcement policy may then indicate legal counsel involvement. On the other hand, the enforcement policy might detail situations where the association will elect to grant a homeowner an extension of time to abate the violation OR dismiss the enforcement matter entirely due to lack of substantive evidence against the homeowner.
    1. Note that in certain circumstances, the association may skip the standard enforcement procedures and involve legal counsel immediately upon notice of the violation(s) (i.e., cease & desist, dangerous situations concerning member safety, irreparable damage to association property will occur).
California HOA lawyers It is quite important for associations to have a clear enforcement policy and to strictly adhere to such policy.  If the homeowner’s violation(s) remained unresolved, the association might proceed with litigation, in which case the court will scrutinize whether the association observed procedural due process.  Associations should look to their general counsel to draft or update their enforcement policy and ensure their management is familiar with the policy and its execution.

-Blog post authored by TLG Attorney, Vivian X. Tran, Esq.

origin*Unpublished Case

In California jurisprudence, it is well established that a homeowner “has no right to an unobstructed view over adjoining property.” (Posey v. Leavitt (1991) 229 Cal. App. 3d 1236, 1250.) Such right may, however, “be created by private parties through the granting of an easement or through the adoption of conditions, covenants and restrictions.” (Id.) And, even then, the right must be expressly stated and narrowly construed.

For example, in the recent unpublished case of Davis v. Irvine Terrace Community Association (2021) 2021 Cal. App. Unpub. LEXIS 53, an owner (“Owner”) sued the association (“Association”) and others alleging a breach of the Association’s Covenants, Conditions and Restrictions (“CC&Rs”). Owner claimed that the Association breached the CC&Rs when it approved a neighbor’s architectural application, which included the construction of a house that would obstruct Owner’s view. While the CC&Rs protect views as to landscape, fences and walls, it contained no similar protection as to houses. Owner nevertheless argued that such protection existed because of the Association’s obligation to enhance and protect “the value, desirability and attractiveness of” Owner’s property. (Id. at p. *16.) The Court rejected Owner’s argument.

In rejecting the Owner’s argument, the Court noted that the CC&Rs included no view protection as to structures such as houses; the Court was unwilling to read into the CC&Rs additional view protections based on the impact architectural modifications would have on the value, desirability and attractiveness of the Owner’s property. Moreover, the Court pointed out that neither the CC&Rs nor the Architectural Guidelines were “intended to protect individual homeowners’ interests. They are intended to protect the community as a whole.” (Id. at p. *14.) Thus, when reviewing an application for an architectural modification, an association need not consider the impact such construction will have on the interests of individual homeowners; rather, the association is only required to consider how such construction will impact the entire community.

Lastly, the Court rejected Owner’s argument that the Association failed to “subjectively consider[] whether [the structures] height and location…will cause disharmony with surrounding structures, including [Owner’s] home[].” (Id. at p. *15.) While reviewing architectural applications will necessarily include a subjective component, there is nothing preventing the Architectural Committee from making a decision based on objective criteria: “The Committee is within its discretion to decide that a proposed plan meets the criteria of “harmony of external design” if it meets certain objective criteria such as height, color, and design scheme when compared to existing structures….” (Id.)

California HOA lawyers Accordingly, the Architectural Committee was justified in approving the neighbor’s application because it satisfied objective criteria contained in the Association’s Architectural Guidelines.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.

Picture1[As written by Rip Van Winkle on June 15, 2021]

In early March 2020, I fell asleep upon drinking my favorite beverage on a California beach.  When I awoke today on June 15, 2021, I am surprised to see people celebrating in the streets and face masks in the trash.  Home prices are sky high and the cost of a gallon of gas is near $5.  What happened during my slumber?!  Everything looks normal to me – but is it?  Help! 

On June 15, 2021, the state of California fully reopened under the New Normal.  According to the state’s web site, Governor Newsom terminated “the executive orders that put into place the Stay Home Order and the Blueprint for a Safer Economy.”  Previously, it noted that beginning June 15, 2021, all sectors listed in the current Blueprint Activities and Business Tiers Chart may return to usual operations…”  How will the state’s reopening plan affect HOAs throughout the state?  The purpose of this article is to briefly summarize what some have described as the New Normal – and to address whether HOAs can reopen without restrictions.

The New Normal 

COVID-19 continues to be present in smaller numbers throughout the state.  The Centers for Disease Control (“CDC”) states that some vaccinated people will still get sick because “no vaccines are 100% effective” and provides that it is “still learning how long COVID-19 vaccines protect people.”  Data suggests that some California citizens remain unvaccinated.  As of June 17, 2021, the California Department of Public Health (“CDPH”) maintains that the “risk for COVID-19 exposure and infection will remain until we reach community immunity from vaccinations, especially in communities heavily impacted by COVID-19.”

Now that the state will no longer be subject to the state’s COVID-19 health guidelines, does that mean that HOAs can return to pre-COVID operations under the New Normal without regard to prior and existing health recommendations?  Not necessarily.

Since the Governor’s March 2020 Executive Order, the state has largely deferred to health mandates imposed by local counties.  While the state may have lifted its Blueprint for a Safer Economy, it is possible that some counties may continue to impose COVID-19 limitations for their local populations based upon their respective COVID-19 metrics.  “Nothing in this Order shall be construed to limit the existing authority of local health officers to establish and implement public health measures within their respective jurisdictions that are more restrictive than…the public health measures imposed on a statewide basis pursuant to the statewide directives of the State Public Officer.” (Executive Order N-07-21 dated June 11, 2021).  Accordingly, it is advisable for HOAs to review local requirements before deciding to resume pre-COVID business (i.e., reopening facilities and holding in-person Board meetings, among other things).

The state’s decision to fully reopen potentially creates confusion regarding the application of health guidelines and safe practices.  Fortunately, the Centers for Disease Control (“CDC”) provides a default framework for community associations to evaluate as they reopen throughout the state.

Liability Considerations

During the New Normal, boards of directors and management professionals should not overlook the CDC’s COVID-19 guidance, particularly because reviewing that material could help to prevent liability exposure for the Association.  The CDC provides guidance for shared or congregate housing, and multifamily housing (e.g., condominiums and townhouses).  The principles from those resources could apply to resident gatherings within community associations, such as in-person board meetings and community events.  The CDC web site includes COVID-19 instruction for many daily activities that are fixtures within HOA communities, such as gyms or fitness centers, playgrounds, and pools.  HOAs would be well served by considering the adoption of safeguards which appreciate the CDC’s guiding principles in those contexts (i.e., encouraging social distancing and mask wearing; sign posting; and resident education, etc.) because the landscape in 2021 is much different than it was in 2019.

Community associations possess the obligation to discharge their legal responsibilities in accordance with certain standards of care.  They can be responsible for harms to third parties if their conduct is considered to be negligent by acting or by failing to act (CACI 400).  Negligence is defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”(Restatement Second of Torts, section 282).  In general, one is required to exercise the care that a person of ordinary prudence would exercise under the circumstances.  The California Supreme Court held the following: “Because application of [due care] is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997).

Notwithstanding the state’s reopening, the amount of care now exercised by HOAs might require a greater appreciation or awareness of safe procedures, in view of the present COVID-19 risk and current health standards.  CDC and state/local guidelines, to the extent available, provide detailed guidance that can be considered in that regard.  Below are suggested practices for some common HOA functions:

HOA Function

Recommended Practice
Indoor Board Meetings Face Mask Coverings – see CDPH’s “Guidance for the Use of Face Coverings – Effective June 15, 2021”, or applicable County guidelines, whichever is stricter.  Click here for our recent blog post regarding face mask coverings.

Holding Gatherings – see CDC guidance.

Maintenance of Common Area Amenities Continuance of enhanced cleaning and disinfection practices – beyond those practices in place before the March 2021 Stay at Home Order.

Maintaining Healthy Environments – see CDC Guidance.

California HOA lawyers Rejoice!  It looks like we may be close to the light at the end of the tunnel.  Much has changed since I fell asleep.  What appears to be normal may not be.  I know that I can ask my trusted HOA lawyer for assistance as I take measures to protect my community – but maybe not at the beach… RVW

-Blog post authored by TLG Attorney, Kumar S. Raja, Esq.

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