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Political Signs and the Limits Imposed on a HOA’s Ability to Regulate Same

Published on: September 23, 2020 | by Steven J. Tinnelly, Esq.

bigstock_Yard_Signs_At_Residential_Stre_229727968 As we draw near to the 2020 election, many residents living in HOAs have decided to install yard signs and other displays for their chosen candidate or cause. Many of these “noncommercial” signs have sparked fury in those who oppose such views, calling upon the Board of Directors to have such signs removed. Thus, in recent months, we have received numerous requests from our clients to provide an opinion as to the extent to which a HOA may regulate the display of such non-commercial signs.

It is without doubt that we currently live in a society with varying opinions on political and social issues. Such division has only become more polarized with recent events. While some might find the opinions espoused by certain groups repugnant, upholding a resident’s right to express those beliefs and opinions through the display of signs on their property is more important than the minor discomfort some may experience in observing such signs. The only other option would be to prohibit residents from displaying any signs concerning issues of politics and social justice, something which the California Legislature has expressly forbidden: “[H]omeowners throughout the state shall be able to engage in constitutionally protected free speech traditionally associated with private residential property” and “shall be specifically protected from unreasonable restrictions on this right in the governing documents.” (Historical and Statutory Notes, 8 West’s Ann. Civ. Code (2007 ed.) foll. 1353.6, p. 184.)

Indeed, under California Civil Code section 4710(a), “[t]he governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.” Some may nevertheless argue that certain noncommercial signs incite terror and/or rioting and therefore must be removed “for the protection of public health [and] safety.” Although such argument is speculative at best, Section 4710’s concern with public health and safety relates to concerns relative to the placement of such signs (e.g., view obstructions), not the fact that some might have an adverse emotional or physical reaction to such signs.

Inquiries have also been made concerning a HOA’s ability to restrict the number of noncommercial signs placed on a resident’s separate interest, as well as the duration of their display. Section 4710 does not address the number of noncommercial signs that may be displayed by a particular resident. However, in Fourth La Costa Condominium Owners Association v. Seith, the Court saw “no problem with allowing only one sign per unit,” and requiring that they be removed after a particular duration. ((2008) 159 Cal.App.4th 563, 581.) While Fourth La Costa pertained to real estate signs (i.e., commercial signs), the Court’s reasoning could similarly apply to restrictions on the number of noncommercial signs as well as the duration of display. (See id. at p. 581 (upholding the HOA’s decision “for aesthetic purposes”).) A HOA’s ability to regulate the number and duration would be further supported if the city/county in which the HOA is located has also promulgated codes/ordinances regulating the installation of political signs on a resident’s separate interest.

Again, it is important to recognize that many residents might find some of the political and social views promoted by their neighbors as offensive. Because they live in a HOA, they must necessarily tolerate differing viewpoints and loyalties. As the California Supreme Court has said, “[t]he very existence of organized society depends upon the principle of ‘give and take, live and let live’….” (San Diego Gas & Electric Co. v. Superior Court. (1996) 13 Cal.4th 893, 937-38.) Therefore, in response to resident complaints, such residents should be informed of the limitation imposed by Section 4710 and directed to “avoid further bombardment of their sensibilities simply by averting their eyes.” (Cohen v. California (1971) 403 U.S. 15, 21.)

Residents who object to the content displayed on noncommercial signs should be reminded that HOAs are limited in the ways in which they may restrict residents from displaying such signs on their separate interests. Nevertheless, HOAs should consult with their general counsel to ensure that the HOA’s operating rules are in compliance with California Civil Code section 4710.

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

HOA Restrictions on Emotional Support Dogs in the Pool Area

Published on: July 15, 2020 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Our Association does not allow pets in the pool area, but a resident has recently begun bringing her emotional support dog to the pool-side lounge area. Do we have to let the dog accompany its owner to the pool?

Answered – Probably. The Federal Fair Housing Act requires housing providers to make reasonable accommodations that may be necessary to allow persons with disabilities to enjoy their housing, including common area spaces. An accommodation is typically considered reasonable if it does not impose an undue financial and administrative burden on the housing provider or fundamentally alter the nature of the provider’s operation. Normally, allowing an emotional support dog to use a common area that is otherwise off limits to pets will not create such a burden on the homeowners association (“HOA”).

In this case, since the HOA’s restriction on pets from the pool area may be serving as a barrier to prevent this resident from using the pool area, making an exception to this rule and allowing her to bring her emotional support dog to the pool deck is likely a reasonable accommodation that the HOA can make.

However, like other dogs within the Association, an emotional support dog must remain under the control of its owner. This means the HOA can require that the dog remain on a leash while it is poolside with its owner unless a specific accommodation to allow the dog off-leash is requested by the dog’s owner and granted by the HOA – there are very limited circumstances when a dog does not have to be leashed or crated. Furthermore, if the dog causes a nuisance (for example, uncontrolled barking) or poses a threat of harm to another person or the property of another person, the HOA can restrict the dog’s presence in order to eliminate the nuisance or threat to other residents of the HOA.

It is worth noting, however, that just because the emotional support dog is allowed in the pool area does not mean the dog may enter the pool. Public health regulations prohibit dogs in swimming pools, and the HOA may not ignore this regulation to allow the dog inside the pool with its owner. If the owner is in the pool, the dog must continue to remain under control, whether the dog’s leash is held by another person capable of controlling the dog or tethered to a stable element.

When an HOA receives a request from a resident for an accommodation based on the resident’s disability, the Board should address the request timely and maintain an open dialogue with the resident. The Board should be careful to address these requests in compliance with all applicable laws and should not ask about the nature or extent of the person’s disability. Oftentimes in a request regarding an emotional support animal, the person’s disability and the animal’s related service task is not readily apparent (as may be the case for a dog that helps guide an individual in a wheelchair). HOA’s should consult their legal counsel regarding requests for accommodation of disabled residents.

-Blog post authored by TLG Attorney, Joelle M. Bartkins, Esq.

How Quickly Must HOAs Bring Suit Against Homeowners for Violations of the Governing Documents?

Published on: April 28, 2020 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked– Is the Board of Directors required to bring legal action, within a certain timeframe, against a homeowner, who is violating the association’s governing documents?

Answered – In most circumstances, the association has five (5) years to bring legal action against violating homeowners pursuant to the Statute of Limitations. (See Code Civ. Proc., § 336(b).) The Statute of Limitations begins to run from the time the board discovers the violations or, through exercise of reasonable diligence, should have discovered the violations. Determining when the Statute of Limitations begins to run is a fact intensive inquiry, which must be evaluated on a case-by-case basis.

The five-year Statute of Limitations tolls (or is extended) in two limited circumstances. The Statute of Limitations will toll for a period of thirty (30) days after a party (either the HOA or a homeowner) offers Alternative Dispute Resolution (“ADR”). (Civ. Code, § 5945(a).) The Statute of Limitations will later toll for a period of ninety (90) days after one party accepts ADR, so that mediation can take place. (Civ. Code, § 5945(b).) This tolling period will also include any extensions agreed to, in writing, by the parties. (Civ. Code, § 5945(b).)

HOAs should keep in mind that even if the Statute of Limitations has not yet expired, the Court has the authority to prohibit an HOA from initiating legal action if it believes that the HOA failed to promptly enforce the governing documents. These legal defenses are known as the defense of “laches” and “waiver.” The defense of laches requires a homeowner to prove that he was prejudiced by the HOA’s unreasonable delay in enforcing the governing documents. Whereas, the defense of waiver requires a homeowner to prove that the HOA failed to promptly remedy a sufficient number of similar violations throughout the community, so that the HOA’s related rules and regulations generally appeared to be waived. The theory is that by failing to enforce some violations, the HOA induced other similarly situated homeowners to believe the association’s governing documents were no longer subject to enforcement.

To avoid these potential defenses, HOAs should act promptly to enforce the governing documents upon learning of a violation. Although, it is important to note, that HOAs are not required to initiate litigation for every potential violation. HOAs can, alternatively, enforce their governing documents without legal action via monetary penalties and/or the suspension of privileges.

When the board of directors discovers a violation, or is notified of the same, it should promptly investigate the matter to determine the best course of action to compel the homeowner’s compliance. Before resorting to litigation, HOAs should always weigh the costs of litigation, the seriousness of the violation, and the likelihood of success at trial. The board of directors possesses wide discretion to determine whether or not to move forward with litigation, so long as the board is acting in good faith and in the best interests of the association. In the case of Beehan v. Lido Isle Community Association, the Court of Appeal held:

“The power to manage the affairs of a corporation is vested in the board of directors. Where a board of directors, in refusing to commence an action to redress an alleged wrong against a corporation, acts in good faith within the scope of its discretionary power and reasonably believes its refusal to commence the action is good business judgment in the best interest of the corporation, a [Member] is not authorized to interfere with such discretion by commencing the action…. ‘Every presumption is in favor of the good faith of the directors. Interference with such discretion is not warranted in doubtful cases.” (Beehan v. Lido Isle Community Association (1977) 70 Cal.App.3d 858, 865.)

If an HOA is uncertain as to whether the Statute of Limitations has expired for an outstanding homeowner violation, the board of directors should consult with its legal counsel to determine whether the HOA has the ability to remedy the outstanding violation through legal action, or to address such violation through alternative means.

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

Can an Association Prohibit Smoking Inside the Units?

Published on: April 7, 2020 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Can a homeowners’ association prohibit owners from smoking within the interior of their units?

Answered – The California Legislature has recognized that homeowners associations (“HOAs”) require flexibility in adopting and enforcing “operating rules” governing the use of common areas and “exclusive use” common areas (or “Restricted Common Areas”) such as parking spaces, patios and balconies. The California Civil Code provides this flexibility by granting HOAs authority to adopt and enforce such operating rules without requiring a formal amendment to the HOA’s Declaration of Covenants, Conditions and Restrictions (“CC&Rs”). (See Cal. Civ. Code § 4350.)

However, a HOA’s authority to adopt operating rules is not absolute. For an operating rule to be valid and enforceable it must satisfy various requirements. One of those requirements is that the operating rule must be “within the authority of the board conferred by law or by the declaration.” (Cal. Civ. Code § 4350(b).) In other words, for the board of directors (“board”) to implement rules regulating conduct within the units, either the CC&Rs or prevailing law must confer upon the board the authority to implement such rules.

Most CC&Rs provide that the board’s rule-making authority extends to activities affecting “the Common Area and the facilities thereon.” Such a provision therefore does not authorize the board to promulgate new operating rules regulating conduct inside the units. Notwithstanding that fact, many CC&Rs also contain a use restriction prohibiting residents from engaging in activities within their units which would constitute a “nuisance.” Indeed, such a provision may read something like:

There is no Such Thing as a Free Lunch – Or a Free Clubhouse: Implementing Reasonable Limitations on Political Speech and Assembly Rights in California HOAs

Published on: February 25, 2020 | by Steven J. Tinnelly, Esq.

bigstock-Election-Campaign-Election-Vo-131448176-1-1140x660-1 We have just passed the two-year anniversary of California Civil Code 4515. This is the law that protects certain rights of members and residents to political speech and peaceful assembly within California community associations. With election season in full swing, it is important for Boards and management to be reminded that the rights afforded to members and to residents by Civil Code 4515 to utilize Association common area facilities and to campaign are not unlimited.

For many associations, Civil Code 4515 comes into play when members or residents (the code applies to both) seek to use common area facilities to hold campaign or political rallies. Rules that previously required the payment of a deposit and/or fee plus proof of liability insurance to reserve a facility for an event needed to be revised in light of the new law, which prohibits such fees, deposits, and insurance for those using the common area facilities for assembly purposes. Managers and Boards were left with the burden of determining how to differentiate between those wishing to use the common area facilities for private events such as birthday parties where a fee can still be charged and those who desired to use those same facilities for assembly purposes where fees cannot be charged.

Reasonable Restrictions on the Use of Common Area Facilities for Assembly Purposes. Association rules & regulations and facility use agreements are useful tools in balancing the requirements of the law with reasonable restrictions that protect the Association. Possible restrictions on the use of facilities for assembly purposes are as follows:

Not open to the public: Both the rules and facility use agreements may require that any 4515-related meetings or events be restricted to members, residents and their guests only so as not to open the Association’s facilities to the public. If the Association is open to the public, it must comply with the Americans with Disabilities Act, a costly endeavor that exposes the Association to potential significant liability if the strict ADA requirements are not met.
Occupancy restrictions: The fire department of each city typically sets maximum occupancy limits for association facilities such as clubhouses. Those reserving the facilities should be required to limit their events to no more than what is permitted by the fire code or to any other reasonable number determined by the Board as the maximum capacity for each facility. Attendance beyond capacity burdens Associations with traffic, potential for unruliness and nuisance, and excess strain on common area components such as restrooms.
Responsibility for damages: Although no fee or deposit may be charged upfront, this does not mean members cannot be held responsible for damage caused to the common area by their residents and guests during 4515-related gatherings. A facility use agreement may be required for anyone reserving the facilities. Reservations should be required in advance and a stated purpose should be required when making the reservation that the meeting is for proper assembly purposes pursuant to Civil Code 4515. If a non-member resident wishes to use a facility for a proper assembly purpose, the member who owns the Lot/Unit where the resident resides may be required to sign such an agreement assuming responsibility for any damage caused at their event. Additionally, most CC&Rs contain a provision that makes members responsible for damage caused to the common area by them, their tenants or guests and many of these damages can be levied as a reimbursement assessment, depending on the language of the Association’s CC&Rs.
Cleaning fees. A facility usage agreement can also require that a member and/or resident reserving a common area facility return the facility in the same condition in which they received it, which includes cleaning and the disposal of trash. If the individual fails to return the facility in the same condition, the Association can charge the responsible member for cleaning fees as required by a facility usage agreement.
Parking: Parking is a concern for many associations and the scheduling of a large rally poses a potential strain on Associations where parking is limited. Civil Code 4515 does not afford members or residents with additional parking rights. That means that the existing parking rules and regulations apply to attendees of an event for assembly purposes. Once the guest spaces are all occupied, attendees must make arrangements to park elsewhere to avoid being cited and/or towed as provided in the Rules. This should be made clear in any facility use agreement so advance arrangements for parking for their guests if necessary. Compliance by all attendees with the governing document provisions, not just its parking provisions, should be required by the rules and/or a facility use agreement for assembly-related events.
Alcohol use: The Association may ban the use of alcohol at events for assembly purposes – even if alcohol is allowed at private events. Because procuring insurance cannot be required for those reserving facilities for assembly purposes, it is reasonable to ban alcohol or other activities which may increase legal exposure to the Association at these gatherings. Likewise, items such as sound equipment that may be used for private events can be withheld from assembly events with no deposit so long as this limitation is made clear in the facility use agreement and/or rules.
Compliance with the governing documents. Members and residents and their guests using common areas must still comply with the provisions of the Association’s governing documents including as to noise levels, parking, cleaning up after service animals, etc. This can be made clear in a well-drafted facility use agreement.
Reasonable hours: Holding a political rally does not give members and residents 24-hour access to the Association’s facilities or rights above members who request to use the facilities for their private events. Rules should be adopted that ensure all members have equal access to these facilities, including for private events, and that the events end at a reasonable time to ensure noise levels are not interrupting residents’ quiet enjoyment of their property.
Designated Areas. Often, an Association’s clubhouse is near a pool or to other facilities and guests of the assembly event spill out into other areas not reserved for the event. A facility use agreement can require that the event must be contained within the reserved facility and that guests may not migrate beyond said designated area.

What is a Proper “Assembly” Purpose Under Civil Code 4515? Most Associations are concerned about the potential abuse of this statute in the form of members reserving facilities without paying a fee stating it is for assembly purposes when it is really just a private event. Examples of qualified purposes of assembly are to discuss common interest living, association elections, legislation, election to public office, or any initiative, referendum, or recall process involving the Association or other political body. If the stated purpose for reserving a facility does not fall into one of these categories, then it is a private event.

Limitations on Canvassing and Petitioning. While Associations cannot restrict canvassing, petitioning, or the circulation of materials for political purposes, they can place reasonable restrictions on these activities such as requiring that it take place only during certain hours. This type of political speech often gives rise to complaints by members disturbed by such unsolicited campaigning and door-knocking, but the Association may not bar such free speech activities when done in a reasonable manner.

To implement reasonable and common-sense restrictions on political speech and assembly without violating Civil Code 4515, HOAs should have their legal counsel review their current rules and policies with respect to campaigning, solicitation and common area use and to prepare agreements concerning the use of common area facilities. Rules or policies which violate Civil Code 4515 subject the HOA to court action and fines.

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

Can the Association Lien for Fines?

Published on: February 4, 2020 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Is there any way to collect a fine other than going to court?

Answered – Monetary penalties (i.e., fines) are just one of the many tools in a homeowners association’s (“HOA’s”) arsenal to enforce its governing documents. They are primarily used to deter violations, as well as to compel compliance from a member, guest or tenant who is in violation. However, many HOAs find fines ineffective at deterring violations because of the difficulty in collecting the fines once levied.

Indeed, when a member fails to pay regular or special assessments levied by the HOA in a timely fashion, the HOA may record an assessment lien against the member’s separate interest to act as security for the payment of the assessment debt. The HOA then has the power to enforce the lien through, among other methods, foreclosure. Unfortunately, the HOA’s ability to collect delinquent assessments through foreclosure does not extend to the collection of fines:

A monetary penalty imposed by the association as a disciplinary measure for failure of a member to comply with the governing documents, except for the late payments, may not be characterized nor treated in the governing documents as an assessment that may become a lien against the member’s separate interest enforceable by the sale of the interest [through nonjudicial foreclosure].

(Cal. Civ. Code § 5725(b).)

Accordingly, an HOA is limited to the following methods to collect fines: (1) bring a lawsuit against the member (typically in small claims court unless the amount of the fine(s) exceed(s) the jurisdictional limits imposed under the California Code of Civil Procedure), or (2) wait until the member’s separate interest is sold and make a demand during escrow. Neither situation is ideal because of issues inherent with each.

For example, judicial action can be a costly and time-consuming endeavor. If the HOA prevails, debtors rarely pay judgments entered against them. Thus, it will take time (and money) to secure payment, either through a wage garnishment or bank levy. Moreover, failure to strictly adhere to the HOA’s Notice and Hearing procedure, along with its Enforcement Policy and Fine Schedule, will preclude the HOA from prevailing in an action to collect fines.

With respect to the latter option (wait until the member sells his or her separate interest), there is no guarantee that the debt will be satisfied through escrow. That is because the debt is not secured by the property. As a result, if the debt is not satisfied through escrow, the HOA will be forced to bring a lawsuit against the now-former member.

As noted above, the purpose of levying a fine against a member is to encourage compliance with the HOA’s governing documents. If the fine works (i.e., the member complies after being fined), the HOA should consider reversing the fine as its objective has been achieved. However, if the fine does not work (i.e., the member continues to violate the governing documents), the HOA should bring an action to enforce the governing documents. Through said action the HOA may seek to collect the fine(s), but its primary objective should be to secure compliance.

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

Overzealous Board Members: Understanding the Scope of the Board’s Authority to Enforce the Governing Documents

Published on: January 14, 2020 | by Steven J. Tinnelly, Esq.

how-should-a-weak-leader-stand-up-against-butt-in-590b43b68caab Homeowners associations (“HOAs”) are governed by a group of volunteer members known as a “Board of Directors” (“Board”). Their primary responsibilities include: (1) managing the common areas, (2) managing the HOA’s finances, (3) setting policies to assist in the operation of the HOA, and (4) enforcing those policies along with the HOA’s governing documents. The Board is therefore vital to the effective operation and management of the HOA, as well as preserving the property values of the HOA’s members.

As indicated previously, one of the primary responsibilities of the Board is to enforce the governing documents. (See Posey v. Leavitt (1991) 229 Cal.App.3d 1236.) In fact, a majority of members purchase their units within the Association in reliance on the governing documents being consistently and faithfully enforced by the Board. However, that power may be abused in situations where a director uses his or her position to target and/or harass particular residents within the community. (See generally Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th 361, 383 (“Of course, when an association determines that a unit owner has violated a use restriction, the association must do so in good faith, not in an arbitrary or capricious manner, and its enforcement procedures must be fair and applied uniformly.”).) It is therefore important that the Board, and not any one individual Board member, take action to enforce the governing documents.

The foregoing is not to say that individual directors are precluded from observing and reporting violations. Indeed, a HOA necessarily relies on its members (including its Board members) to report instances where the governing documents may have been breached. Photographing the potential violation is not problematic to the extent that the photograph captures an area that may be observed from a lawful vantage point (e.g., the common area). However, upon observing/documenting a potential violation of the governing documents, the observing party must report that observation to the HOA’s community manager (“Manager”) so that same may initiate the procedures contained in the Association’s enforcement policy (“Policy”). Individual directors should never communicate directly or indirectly with residents concerning their ostensible violation(s) because doing so heightens the concerns referenced above.

Additionally, it is important to point out that the Manager is not acting on his or her own volition; rather, the Manager is executing the duties delegated to him or her by the Association. Therefore, the Manager is acting on behalf of, and at the direction of, the Association. This distinction is important because it underscores the fact that the action is being taken by the Association or at the Association’s direction, and not by any one individual.

In light of the foregoing, each Board member should employ the following procedure when observing a violation of the HOA’s governing documents:

Any observed violation shall be reported to the Manager in writing and shall include any supporting information (e.g., a detailed description of the violation, photographs, etc.).
Thereafter, the Manager, and not the observing Board member, must comply with the procedural requirements contained in the HOA’s Policy, which typically requires the preparation and mailing of a “courtesy notice” to the offending resident advising same of the alleged infraction.
If the violation continues to occur, the Board should direct the Manager to prepare correspondence inviting the offending resident to a hearing before the Board.
At the hearing, the Board may impose discipline pursuant to the Association’s governing documents.
The observing Board member must not communicate with the offending resident at any point during the enforcement process (unless otherwise authorized by the Board).

The foregoing procedure emphasizes the fact that the HOA acting through the Board, and not any individual member of the Board, enforces the governing documents. Following this procedure will mitigate the Board members’, and by extension, the HOA’s, liability exposure.

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

Dog Parks: Best Practices for Limiting an HOA’s Liability Exposure

Published on: December 26, 2019 | by Steven J. Tinnelly, Esq.

dogparkdogs One of the many benefits of living in a homeowners association (“HOA”) is the amenities provided to its residents. Common amenities include recreational rooms, pools, and fitness facilities. One amenity gaining in popularity is designated for the community’s canine companions: dog parks. Dog parks provide dogs with a designated off-leash area where they can run, exercise and play while minimizing damage to other common areas. However, having such an amenity could increase a HOA’s liability exposure, especially if the dog park is not designed properly and the HOA does not have rules and regulations governing the use of the dog park. Accordingly, the purpose of this article is to provide HOAs with best practices and guidance on adopting rules regulating the dog park.

Design

For HOAs contemplating the construction or installation of a dog park, or for those with pre-existing dog parks, the Board of Directors (“Board”) should consider the park’s design. One critical design aspect is the fence enclosing the dog park; the fence should be tall enough so that a large dog cannot jump over it. Additionally, the entrance into the dog park should be through a double-gate system. Such a system reduces the likelihood of a dog escaping. Finally, the HOA should also have two separate areas; one for larger dogs and one for smaller dogs. These are just a few of the design features a Board should consider when creating or modifying a dog park.

Rules

Most HOAs already have rules regulating the maintenance of pets within the community. However, if a HOA is considering installing a dog park, it should incorporate rules specific to the park. Moreover, those rules should be posted at all entrances to the park in a highly visible location.

Some rules to consider include the following:

Dogs are permitted to be off leash while in the dog park provided that they are able to respond to audible controls, such as whistling.
Dogs must be leashed upon exiting the dog park.
Dog owners shall remain in the dog park and shall maintain visual observation of their dog at all times.
Dogs must be current on all vaccinations.
Dogs with known violent propensities or aggressive behavior are prohibited from using the dog park. Any dog showing signs of aggression while in the dog park shall be removed immediately by the dog owner.
Owners shall pick up their dog’s waste. Waste must be put in a tightly sealed plastic bag before being disposed of.
Owners are required to fill any holes created by the owner’s dog.

Dog parks are a great amenity but can increase a HOA’s liability exposure. It is therefore important for the Board to engage legal counsel before beginning the process of constructing and installing a dog park to ensure that the HOA is protected.

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

Droning On and On…Should Associations Use Them to Catch Violators in the Act?

Published on: November 12, 2019 | by Steven J. Tinnelly, Esq.

dji-drones-update-registration-2

Serial dog poop litterers, unauthorized parking of vehicles, architectural violations, smoking nuisance—the list goes on and on when it comes to common “repeat violations” that a homeowners association (“HOA”) encounters on a day-to-day basis. With the increasing number of repeat violations and limited number of HOA board members and property managers, questions have surfaced whether or not HOA’s may, or should, utilize drones to enforce violations. Specifically, HOA boards are concerned with the legal implications that such utilization may impose because, well, why wouldn’t an HOA board want to send out a drone to inspect an architectural violation or monitor a smoking nuisance in lieu of physically walking to the property to do the same? In addition to the convenience factor that drones provide, it gives HOAs the added benefit of having concrete, recorded evidence should the violation escalate to the level of arbitration or judicial enforcement.

From a legal standpoint, the two primary areas of law that factor into HOA drone usage are (1) privacy law and (2) property law.

Privacy

While there are numerous privacy laws and regulations, for HOA purposes, California Civil Code §§ 1708.8 (a) and (b) (collectively, the “Provision”) are the most applicable in regard to drone surveillance and enforcement. The Provision prohibits both “physical” and “constructive” invasion of privacy. Physical invasion of privacy requires the element of intentional trespass onto the land or airspace of the home (discussed further below) while constructive invasion of privacy does not require the element of physical trespass onto land or airspace.

In any event, both Provisions hold one liable for invasion of privacy when same utilizes a drone to “capture any type of visual image, sound recording, or other physical impression of the plaintiff [e.g., homeowner] engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” (Emphasis added.) Ah yes, the “reasonable person” standard comes into play here as it does in almost 99.99% of standards used to dictate liability. Interpret it exactly how it sounds. If an HOA is utilizing the drone to capture a serial dog poop litterer in the community park, it certainly would not offend a reasonable person walking their dog in the park, nor would the violating individual have a “reasonable expectation of privacy” (a standard also used to adjudicate privacy suits) on common area owned by the HOA.

On the other hand, if an HOA is investigating a nuisance matter of excessive cigarette and/or marijuana smoke, can the HOA operate a drone from the common area zooming into the living room? Probably not. While one may make the argument that if the smoking activity was viewable in plain sight from common area streets (e.g., curtains wide open) that the individual has no reasonable expectation of privacy, it is likely to fail because the principle of an individual’s right and expectation of privacy within his/her home is held to an extremely high standard. Furthermore, it is best practice for HOA’s to err on the safe side of caution and avoid potential exposure to liability.

Property

In addition to looming privacy concerns, HOAs need to be aware of property laws that protect homeowners from drone usage; in particular, communities that consist of single family homes wherein the homeowner owns the airspace above the land. In the early stages of property law (also known as “common law”), the principle that controlled for centuries was “[w]hoever’s is the soil, it is theirs all the way to Heaven and all the way to hell.” Of course, this has changed over the years with the evolution of mankind and (flight) technology starting with the groundbreaking U.S. Supreme Court case United States v. Causby, wherein the Court held that homeowners owned the airspace above ground level up to 365 feet (anything above that was public domain).

Today, homeowners own the airspace 500 feet above ground level in “uncongested areas.” (14 CFR § 91.119(c).) This is the standard generally applied to airspace demarcation in residential communities (i.e., HOA’s). See Lacey v. United States, 595 F.2d 614 (1979); see also Aaron v. United States, 311 F.2d 790, 801 (1963). The idea behind this is to give homeowners property rights to their parcel of land as high above it as “normal use of the land” requires. As such, unless the drone is capable of operating in excess of 500 feet above ground level (at which point no practical HOA purpose will likely be served), under very limited circumstances should a drone ever be hovering above a homeowner’s physical land or airspace.

HOAs should utilize drones to enforce violations of their governing documents where appropriate—this should be considered on a case-by-case basis. Whether it is a serial dog poop litterer or smoking nuisance matter, it is advised that HOAs that are intending on utilizing drones use sound judgment, and more so, consult with their general counsel. Keep in mind that in order to operate a drone for HOA-related purposes, the HOA will have to apply for an exemption from registering the drone with the Federal Aviation Administration (“FAA”).

From our experience, with any recording devices implemented by HOAs, it is best practice and strongly recommended for HOAs to adopt a “Surveillance Camera Policy” or “Drone Policy,” wherein rules are implemented to regulate such devices and afford protection to the HOA.

-Blog post authored by TLG Attorney, Andrew M. Jun, Esq.

The Modern Age of Social Media and the Need for Regulation Within Homeowners Associations

Published on: October 22, 2019 | by Steven J. Tinnelly, Esq.

Like it or not, we live in the age of social media. It is undeniable and has dramatically transformed the way we communicate in every arena, including homeowners associations (“HOA”). Information, opinions and images are broadcast and circulated at a rapid pace with little or no oversight involved. These unfiltered transmissions over social media airwaves can have profound impacts on homeowners associations’ governance (board of directors), as well as its membership (homeowners). Understanding the legal implications of social media use in the context of managed communities is critical to avoid conflicts, unexpected costs and legal battles.

In recent years, we have seen a myriad of lawsuits stemming from social media abuse: In Tennessee, a homeowner faced legal action from her HOA for using the name of her subdivision on her personal Facebook neighborhood page. In New York City, co-op residents aired their dirty laundry online, resulting in multiple lawsuits. Elsewhere, a vacation-condominium owner sued a guest for $15,000 over negative social media comments.

It is not uncommon to find defamatory language being hurled at board members or management by disgruntled homeowners on online community forums, board members purporting to speak on behalf of the association on their personal Facebook pages, and association social media channels turning into de facto board meetings in violation of state law and governing document protocols.

These problems arise largely due to an inherent discord between the nature of social media and how community associations operate. Association managed communities are highly regulated and restricted – indeed, their chief governing instrument is titled Covenants, Conditions and Restrictions (“CC&Rs”). To the contrary, social media regulation is grossly inadequate. Simply put, people are free to share their thoughts and opinions without real consequences, which often leads to capricious communications. However, people cannot do this in community associations. For instance, homeowners cannot blurt out opinions in board meetings – in fact, homeowners are often not even allowed to speak, unless given permission.

Unfortunately, the legal landscape has been quite slow to catch up with the problems associated with unbridled communication. There are few, if any, state laws to govern the use of social media in the realm of corporate governance. Moreover, developers who write the CC&Rs are focusing on issues like special assessments and architectural approval, not whether board treasurer Bob has the right to post his opinions on the clubhouse renovation on Twitter.