Enforcement

HOA Dealing with Unruly Tenants?

Published on: May 19, 2014 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – A renter/tenant within our community is continually engaging in improper conduct, violating the governing documents, and causing nuisances that are impacting surrounding homeowners. Is there anything the HOA can do to evict the tenant? What steps can the Board of Directors take to prevent situations like this from happening in the future?

Answered – Improper conduct of tenants is a problematic situation commonly faced by homeowners associations (“HOAs”). Tenants often are not as involved in the affairs of the HOA as that of the HOA’s members, nor do tenants feel the same sense of investment in the community. Additionally, members who rent out their homes typically prioritize rental income over the concerns of neighboring homeowners.

The degree to which a HOA may take action directly against an unruly tenant will be principally governed by the HOA’s governing documents–specifically, the HOA’s recorded declaration of covenants, conditions and restrictions (a.k.a. “CC&Rs”). The restrictions in the CC&Rs are “equitable servitudes” that are enforceable against the owners of the “separate interests” within the HOA (the HOA’s members). Civ. Code § 5975. CC&Rs may contain provisions requiring tenants to comply with the HOA’s governing documents. However, those provisions essentially confer obligations upon the members to control the conduct of their respective tenants. Therefore, any remedies available to the HOA in response to tenant violations or nuisance activities must generally be pursued through action against the tenant’s landlord (the HOA member), not the tenant.

However, there are ways in which a HOA may broaden its ability to take action directly against a tenant. For example, a HOA can amend its CC&Rs to require any leases between a member and a third-party tenant to contain language which: (1) requires the tenant to comply with the governing documents, (2) grants the HOA the authority to take action directly against the tenant in response to violations, and (3) holds the landlord-member responsible for the HOA’s attorneys’ fees and costs incurred in taking such action. Such language would make the HOA a “third-party beneficiary” under the lease with the contractual right to enforce its terms through an eviction action or otherwise. Such language will also motivate members seeking to rent out their homes to secure higher-quality tenants at the outset.

In the absence of such language, the HOA should take formal action directly against the tenant’s landlord (the HOA member). Faced with the threat of fines and costly legal action, the member will likely realize that his/her financial interests are better served through securing a different tenant. A HOA dealing with unruly tenants should therefore seek the assistance of its legal counsel to determine the best course of action.

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

Court Upholds HOA Enforcement of ‘Maid Unit’ Rent Restriction

Published on: February 24, 2014 | by Steven J. Tinnelly, Esq.

The ability of California homeowners associations (“HOAs”) to adopt and enforce restrictions on the renting of units has been limited by changes in the law over the past couple of years. Those changes have purported to provide greater protections for homeowners seeking to rent out their units to third parties. HOAs have therefore been required to modify their approach to the enforcement of rent restrictions that may be contained in their governing documents, including the adoption of additional rent restrictions binding only on future homeowners.

However, a recent unpublished Appellate Court decision confirms the ability of a HOA to enforce rent restrictions adopted decades in the past that are intended to address the unique concerns and characteristics of the HOA’s development.

HOA Legislative & Case Law Update (2014) Now Available!

Published on: January 16, 2014 | by Steven J. Tinnelly, Esq.

hoa update 2014 Our “Annual Legislative & Case Law Update” newsletter for the year 2014 is now available in our library!

The Legislative & Case Law Update provides an overview of the new legislation and case law impacting California Homeowners Associations (“HOAs”) as we head into 2014. The new legislation includes, among other items, the re-organization of the Davis-Stirling Act (now in effect), and a bill that clarifies contractor licensing requirements for HOA managers. The new case law includes rulings that may impact HOA election rules, membership rights to attend Board meetings, use of HOA media outlets during election campaigns, insurance defense coverage, attorney’s fees recovery in HOA disputes, and assessment collection procedures.

Click here to read our Annual Legislative & Case Law Update (2014)

Have questions on any of the new legislation or case law? Click here to send us a question online.

Is There a ‘Model’ Set of HOA Rules & Regulations?

Published on: November 22, 2013 | by Steven J. Tinnelly, Esq.

rules and regulations california hoa assocaition.png *Asked & Answered

Asked – Are there recognized models of well-written rules and regulations for homeowners associations?

Answered – No, there are not, and the reason is because homeowners association (“HOA”) CC&Rs typically leave the drafting and amending of rules and regulations to the HOA’s Board of Directors. The types of rules and regulations (defined as “operating rules” under the Civil Code) that a HOA may adopt will depend on the language contained in the HOA’s governing documents as well as the unique characteristics of the common interest development. For example, the CC&Rs for condominium developments usually contain provisions explicitly addressing the Board’s ability (and in many cases, the Board’s obligation) to adopt a set of parking rules that regulate the HOA’s finite number of common area parking spaces. By contrast, CC&Rs for single family home projects may broadly state the Board’s ability to adopt rules governing the use of the HOA’s streets.

Here are the common issues that HOA Boards should address in drafting a good set of rules and regulations: common area rules, parking restrictions, noise and nuisance guidelines, trash can rules, pet restrictions, tenant rules, sign restrictions, pool and clubhouse hours, and the association’s disciplinary policy. Many of our clients also choose to include within their rules and regulations a restatement of some of the important restrictions contained in their HOA’s CC&Rs. This provides a valuable “quick reference guide” for residents who may not take the time to read through the entire set of the HOA’s CC&Rs.

The Board may also include a copy of the following policies that are provided to members in the Annual Policy Statement pursuant to Civil Code § 5310 as part of the “quick reference guide:” Architectural Guidelines and Application Procedures, Neighbor-to-Neighbor Dispute Policy, Alternative Dispute Resolution Procedures, Election Policy, and Assessment Collection Policy.

Rules and regulations are a valuable tool for resolving certain issues that are not explicitly addressed in a HOA’s CC&Rs. However, a Board must be aware of the limitations placed upon its rule-making authority under its HOA’s governing documents as well as the Civil Code. Therefore, where a Board’s authority to adopt or amend any particular rule or regulation is unclear, the Board should consult with the HOA’s legal counsel.

Blog post authored by Tinnelly Law Group attorney, Terri Morris.

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

HOA Collection Procedures: Strict Compliance Required

Published on: August 12, 2013 | by Steven J. Tinnelly, Esq.

*New Case Law hoa foreclosure

The California Civil Code requires community associations (“HOAs”) to levy regular and special assessments as necessary to perform the HOA’s obligations under its governing documents. However, when a homeowner fails to pay those assessments, HOAs are often left with no alternative other than to pursue the owner in accordance with the collection methods sanctioned under the HOA’s governing documents and the Civil Code. Because those methods could result in the foreclosure of the delinquent homeowner’s property, it is paramount that HOAs strictly comply with the statutory procedures and requirements applicable to assessment collection (i.e., transmittal of notices, dispute resolution procedures, votes to initiate foreclosure, etc.).

The recent case of Diamond v. Casa Del Valle Homeowners Association 2013 DJDAR 9176, which has been certified for publication, illustrates how failing to comply with those procedures and requirements can result not only in the invalidation of a HOA’s assessment lien, but also an award of attorney’s fees and costs to the delinquent homeowner…

Dealing with Homeowner Delay in ADR Scheduling

Published on: July 10, 2013 | by Steven J. Tinnelly, Esq.

hoa adr.jpg *Asked & Answered

Asked – My HOA previously sent out an ADR request to a homeowner which was accepted shortly thereafter. The HOA has been attempting to schedule the ADR by providing the homeowner with numerous dates and times that worked for the HOA. However, the homeowner has rejected all offered dates and is demanding that the ADR take place at the end of the 90 day period set forth in the Civil Code. Is the HOA obligated to schedule the ADR as far out as possible per the homeowner’s demands?

Answered – No. California Civil Code Section 1369.540(a) simply provides that upon acceptance of a request to participate in Alternative Dispute Resolution (“ADR”), “the parties shall complete the [ADR] within 90 days.” Though it is not explicitly stated, both parties have an obligation to act reasonably and in good faith in their efforts to schedule the ADR within the statutory deadline. If the HOA offers the homeowner a range of available dates, the homeowner is not entitled to unreasonably decline to participate on any of those dates and, in doing so, delay the efficient resolution of the matter. This is especially true when the dispute involves a safety issue which needs immediate resolution.

Depending on the circumstances and history of the dispute, the homeowner’s failure to cooperate in the scheduling process may be deemed a rejection of ADR, thereby authorizing the HOA to file a lawsuit to resolve the dispute. Additionally, if a lawsuit is filed and the HOA prevails, the court may consider the homeowner’s unreasonable refusal to schedule/participate in the ADR when determining the amount of the HOA’s attorneys’ fees award. Ca. Civ. § 1369.580.

HOAs must use caution when taking action to resolve a dispute with a homeowner that could escalate to litigation. The HOA must ensure that it acts reasonably in its efforts to offer the homeowner the opportunity to participate in the statutorily required ADR process. The HOA’s Board should seek the assistance of its legal counsel who can provide guidance based on the unique circumstances of the dispute and the conduct of the offending homeowner.

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

Swimming Pools: Required Safety Signs

Published on: June 25, 2013 | by Steven J. Tinnelly, Esq.

pool signs hoa attorny california.png *Asked & Answered

Asked – Is there a new sign requirement for pools located in homeowners associations?

Answered – Yes. Title 24 of the California Building Code was updated to require new safety signs for public swimming pools. (Association pools are considered public pools.) Two new signs are required for all pools:

A sign shall be posted on the exterior side of all gates and doors leading into the pool enclosure stating, “KEEP CLOSED.”
A sign in letters at least 1 inch high and in a language or diagram that is clearly stated shall be posted at the entrance of the pool area which states that persons having currently active diarrhea, or who have had active diarrhea within the previous 14 days shall not be allowed to enter the pools water.

A third new sign must be posted at pool areas that have spray ground (interactive fountains) that children run through, and made visible from any part of the spray ground that states, “CAUTION: WATER IS RECIRCULATED. DO NOT DRINK.”

The signs are required immediately on all new pool construction; however, on existing pools it will be up to the Environmental Health Services personnel that inspect the association’s pool to provide the deadline for positing the new signs. It would be prudent to have the signs posted as soon as possible.

Content provided by TLG attorney Terri Morris

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

HOA Restrictions on Companion and Service Animals

Published on: May 29, 2013 | by Steven J. Tinnelly, Esq.

service animal hoa law accomodation attorneys disability.png *Asked & Answered

Asked – Our high-rise condominium association does not allow dogs weighing over 40 pounds, but we have an owner that has requested an exception for her “companion” dog that is a 70 pound Golden Retriever. Does our HOA have to allow the homeowner to have her companion dog?

Answered – Probably. The HOA may not discriminate against individuals with disabilities by prohibiting a “companion” animal or a “service” animal. The HOA’s weight restrictions for pets in the community does not apply to companion or service animals because they are not “pets.” Companion animals provide psychiatric support to individuals suffering from a mental disability such as depression, claustrophobia, certain types of autism, and other disorders that are mental in nature, while service animals assist with physical disabilities.

The Board must be careful to properly address the request for an accommodation due to a disability. If the homeowner can provide documentation of her diagnosed need for the animal, the Association must permit her to keep the animal in the community. The request should be handled quickly and with respect for the individual.

Handling requests for accommodation can be challenging. For more information on this topic, please visit our library and review our article titled “Responding to Requests for Accommodation.”

Content provided by TLG attorney Terri Morris

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

HOA Gets ‘Smoked’ in Nuisance Enforcement Case

Published on: March 19, 2013 | by Steven J. Tinnelly, Esq.

smoking-hoa

The problems posed by second-hand smoke have become a burning issue for California homeowners associations (“HOAs”), expecially condominium developments. A HOA typically does have the authority to adopt operating rules that prohibit smoking in common areas and exclusive use common areas; however, those rules may be insufficient to address problems posed by second-hand smoke emanating from inside an owner’s unit. Prohibiting that type of activity generally requires language to that effect contained in the HOA’s recorded CC&Rs. Where there is no such language, HOAs often refuse to get involved and opt to treat those situations as a “neighbor-to-neighbor” disputes.

However, we have written before about how a HOA may have an obligation to enforce the nuisance provisions contained in its CC&Rs to address problems posed by smoking within units. An Orange County jury recently affirmed this fact in the first ruling of its kind in California. The jury in Chauncey v. Bella Palermo Homeowners’ Association, et al., OCSC Case No. 30-2011-00461681, found the defendants HOA and its management company negligent and also found the HOA in breach of its CC&Rs for failing to enforce its nuisance provision protecting the plaintiffs’ rights to their “quiet enjoyment” of their unit. The jury held the HOA liable for doing nothing to abate the alleged nuisance resulting from the second-hand smoke, despite the fact that the CC&Rs contained no provision specifically prohibiting smoking within the units.

More and more municipalities are adopting “no-smoking” ordinances within multi-dwelling residential units. However, where there are no such ordinances, or any similar restrictions contained in a HOA’s recorded CC&Rs, a HOA may be still be obligated to enforce its nuisance provisions to address problems posed by second-hand smoke emanating from the interior of a unit. Where the problems persist, a HOA should consult with its legal counsel and also consider a formal amendment to its CC&Rs to prohibit smoking throughout the entire development.

Content by TLG attorney Terri Morris

Recovering Pre-Litigation Attorney’s Fees in HOA Disputes

Published on: March 13, 2013 | by Steven J. Tinnelly, Esq.

*New Case Law

In our recent blog post entitled “Are Attorney’s Fees for ADR Recoverable?” we touched briefly on the recently decided case of Grossman v. Park Fort Washington Association (2012) 212 Cal. App. 4th 1128 (“Grossman”). In response to requests for more information on this issue from our clients and industry partners, we felt it necessary to further address the reasoning behind the court’s ruling in Grossman.

In Grossman, a dispute between a homeowners association (“HOA”) and a homeowner relating to a claimed architectural violation was resolved by the trial court in favor of the homeowners. In awarding the homeowners attorney’s fees and costs arising from both pre and post-litigation activities, the trial court cited Civil Code Section 1354(c), which states that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (Emphasis added.)

The HOA objected to the award based on its argument that the statute did not authorize awarding pre-litigation attorney’s fees (fees incurred in participating in ADR) because such fees were not incurred as part of the action (the lawsuit) to enforce the governing documents. However, the appellate court disagreed with the HOA and ultimately affirmed the ruling, noting several key points…