HOA Governance

HOA Liability FORE Errant Golf Balls

Published on: May 22, 2025 | by Carrie Heieck, Esq. and Steven Tinnelly, Esq.

Golfers sustaining injury while out on the links is sometimes “par for the course”. Due to the nature of the sport, California courts consistently apply the “assumption of the risk” doctrine to claims by golf participants against golf course operators for injuries sustained from risks that are inherent in the sport itself. For example:

“Golf is an active sport to which the assumption of the risk doctrine applies. (Dilger v. Moyles (1997) 54 Cal.App.4th 1452, 1454.)
A recreation provider “owes no duty to a participant in an active sport to use due care to eliminate risks inherent in the sport.” (American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30.)
“When the risks are inherent, the defendant does not have a ‘duty to protect the plaintiff from those risks…or take steps to reduce those risks.’” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1058.)
The inherent risk in golf encompasses more than just the possibility of being struck by an errant golf ball while playing; it also includes the risk of a golfer stepping on or tripping over a tree root in a grassy area near a tee box. (Wellsfry v. Ocean Colony Partners, LLC (2023) 90 Cal.App.5th 1075.)

However, as noted above, the assumption of risk doctrine has been mainly analyzed in the context of injuries sustained by people who are participants (injuries sustained by the golfers themselves). So, what about when a non-participant is injured or sustains some other damage from an errant golf ball? For example, assume that (a) an individual purchases a home adjacent to a golf course that is operated by their homeowners association (HOA), and (b) the homeowner knew (or should have known) of the hazards of errant golf balls when they purchased the home. If that homeowner then sustains injury or property damage from errant golf balls, can the homeowner prevail in legal action against their HOA on the theory that the HOA breached some duty to protect them from such injury or damage?

Nuisance Claims:
California courts have addressed this at least in the context of a nuisance cause of action. In Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, the defendant Country Club was not liable under a nuisance cause of action because, among other things, the plaintiff homeowners knew (or should have known) of the inherent risk of errant golf balls when they first purchased their home bordering the fairway of the 10th hole. Notably, the court in Hellman was not moved by the fact that the plaintiffs’ home was hit with golf balls “every day of the week”, that the plaintiffs’ vehicles sustained damage from errant golf balls, or that the plaintiffs were “afraid to have guests outside during the daytime and [did] not use [their] swimming pool for fear of being hit by golf balls.” Rather, the court upheld the trial court’s decision that the country club was not operating a nuisance because, among other factors, the plaintiffs purchased their property “with knowledge that it was next to a golf course, which put them on at least constructive notice that golf balls would be landing on their property.”

Negligence Claims:
Although the holding in Hellman dealt with nuisance liability, the holding in Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176 arguably provides a basis to extend the Hellman rationale when evaluating negligence liability. In Neinstein, the court analyzed the assumption of risk doctrine in evaluating the duty of care owed by a baseball stadium to a non-participant (a spectator who was struck by a foul ball). In holding that the stadium was under no duty to protect the spectator, the court in Neinstein noted how the spectator voluntarily elected to enter the area of risk (elected to sit in a section where foul balls were likely to enter) and was “sufficiently warned of the risk by common knowledge of the nature of the sport.”

This assumption of risk analysis for spectators at sporting events arguably extends to those who choose to occupy homes adjacent to golf courses. Although there is no published case law supporting this extension, the Court of Appeal’s unpublished holding in Hernandez v. Ong, No. D038200, 2002 WL 266864 (Cal. Ct. App. 2002) lays out the argument in a compelling way:

“…in baseball the spectator participates in the sport by subjecting himself to certain risks necessarily and usually incident to and inherent in the game. The spectator also accepts the myriad benefits of attendance. Although not a spectator of the golf being played, one who moves into a house that is adjacent to an existing golf course chooses, as does a spectator, to participate in the benefits of the golf courses’ pastoral setting and accepts the inherent dangers of such participation. Persons who move into houses adjacent to existing golf courses are “sufficiently warned of the risk by common knowledge of the nature of the sport.”

For HOAs with or adjacent to golf courses, exculpatory clauses in their recorded CC&Rs can be useful in exempting the HOA from liability associated with errant golf balls. While such clauses cannot violate a statute or public policy, they are generally enforceable in the HOA setting where they are fair and reasonable. (See Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824). It is recommended that golf course communities consult their HOA legal counsel to ensure their governing documents provide adequate protections for golf-related injury claims.

Whose Yard is it Anyway? Part I: Homeowners’ Speech

Published on: March 31, 2025 | by Sarah Paas, Esq.

Part I: Can HOAs restrict homeowners’ speech?

For individuals residing in common interest developments, the constitutional right to free speech is not applicable. While many believe that they have a right to freely express themselves by posting signs, banners, flags, and religious symbols on their own properties, they may be surprised to learn that their HOAs and condominium associations are not bound by the free speech clauses contained within the federal and state constitutions. Though, in California, this does not mean that residents automatically lose their free speech rights when they move into their associations, because the Davis-Stirling Act safeguards many of the same rights that are enjoyed by citizens residing outside of common interest developments.

Constitutional Rights to Free Speech
Both the state and federal constitutions prohibit state actors (i.e., the government) from restricting free speech, but these constitutional protections do not generally apply to purely private actors, like HOAs and condominium associations. Throughout the years, numerous exceptions to this general rule have been made. In Marsh v. Alabama (1946) 326 U.S. 501, the United States Supreme Court held that a “company town,” even though privately organized, provided many services typically reserved to a city; therefore, the private town was bound to abide by the First Amendment. The California Supreme Court has gone even further to hold that the state constitution affords broader protections than the U.S. Constitution by protecting free speech rights on privately owned property when such property is freely and openly accessible to the public. (Golden Gateway Center v. Golden Gateway Tenants Association [2001] 26 Cal.4th 1013.) Despite these rulings, most common interest developments will continue to be viewed private actors that are not subject to the same constitutional restraints as the government, because they are private organizations that are not freely and openly accessible to the public.

Statutory Free Speech Safeguards
Regardless of whether the federal and state constitutional protections apply, the California legislature has enacted various statutes that prevent common interest developments from infringing on the free speech rights of their members. These state protections are consistent with our country’s “special respect for individual liberty in the home [which] has long been a part of this Nation’s culture and law…” (City of Ladue v. Gilleo [1994] 512 U.S. 43, 44.). These statutes vary depending on the type of speech at-issue:

(i) noncommercial speech;
(ii) commercial speech;
(iii) religious symbols;
(iv) display of U.S. flags;
(v) speech/assembly rights pertaining to HOA elections, public elections, legislation and/or living with HOAs

As such, the first step in analyzing whether an association may restrict and/or ban homeowners’ speech is to identify the category of speech involved. This is because different types of speech deserve different levels of protection under the law. We will discuss each category of speech (i.e. commercial, non-commercial, religious symbols, flags, etc.) and the associated protections, in more depth, in our blog articles to follow.

Before banning and/or restricting an individual from speaking, homeowners associations should always consult with their HOA attorney to ensure compliance with the pertinent laws.

(Another) Important Update! Court lifts Injunction; CTA Reporting Deadline now March 21, 2025

Published on: February 19, 2025 | by Dyanne Peters, Esq.

In the ever-continuing saga known as the Corporate Transparency Act (CTA), the District Court for the Eastern District of Texas recently lifted an injunction staying the enforcement of the CTA. (Smith, et al. v. U.S. Department of the Treasury, et al., (E.D. Tex., Feb. 17, 2025) 6:24-cv-00336.) This reversal follows the Supreme Court’s order in McHenry v. Texas Top Cop Shop, Inc., which overturned the decision of the 5th Circuit, affirming the District Court’s nationwide injunction blocking the enforcement of the CTA and its reporting requirements. ((2025) 604 U.S. ____, 2025 WL 272062 at 1; see also Texas Top Cop Shop, Inc. v. Garland (E.D. Tex., Dec. 5, 2024) 4:24-cv-00478-ALM.) This means that the reporting requirements for reporting companies, including most HOAs, are back in effect…for now.

In response, FinCEN issued a notice extending the reporting deadline. “[B]ecause the Department of the Treasury…recognizes that reporting companies may need additional time to comply with their BOI reporting obligations, FinCEN is generally extending the deadline 30 calendar days from February 19, 2025, for most companies.” (U.S. Department of Treasury, FinCEN Notice, FIN-2025-CTA1 (Feb. 18, 2025).) Accordingly, HOAs are required to complete and file its first beneficial ownership information report with FinCEN by no later than March 21, 2025.

HOAs should continue to monitor developments as even FinCEN contemplates the potential for “further modification” of the March 21st “deadline.” Legal counsel can be a resource in this regard and should be consulted concerning CTA compliance and reporting obligations.

5th Circuit Grants Stay, Corporate Transparency Act Deadline Remains January 1st

Published on: December 23, 2024 | by Matthew Plaxton, Esq. and Steven Tinnelly, Esq.

Update: Compliance is not currently required and the next hearing is scheduled for March 25, 2025.

In a dramatic turn of events, the United States Court of Appeals for the 5th Circuit has granted the government’s motion for a temporary stay of the District Court’s order enjoining enforcement of the Corporate Transparency Act (CTA). As a result, all applicable common interest developments in the state must file their beneficial ownership information reports with FinCEN by January 1st. The recent federal spending bill notably did not include the anticipated one-year extension to the filing deadline. Compliance is now urgent, as the CTA’s requirements remain fully enforceable under the revised timeline.

HOAs should monitor developments in this case and consult with their HOA legal counsel to stay informed of their CTA compliance and reporting obligations.

BREAKING NEWS! Federal Court Issues Nationwide Halt on the Corporate Transparency Act

Published on: December 4, 2024 | by Matthew Plaxton, Esq. and Steven Tinnelly, Esq.

The Corporate Transparency Act (“CTA”), enacted in December 2020, aims to increase corporate ownership transparency to combat money laundering, terrorism financing, and other illegal activities. The CTA requires many small businesses, classified as “reporting companies,” to submit beneficial ownership information (“BOI”) reports to the Financial Crimes Enforcement Network (“FinCEN”). This requirement extends to certain homeowners associations (“HOAs”) and involves disclosing personal details—such as names, addresses, and copies of driver’s licenses or passports—about individuals with “significant control” over the HOA (i.e., members of the HOA’s Board of Directors).

Not surprisingly, many reporting companies objected to the reporting requirements, citing government overreach and privacy concerns as the primary reasons for opposing the reporting requirements. These objections led the U.S. District Court for the Northern District of Alabama to grant the National Small Business Association’s request for a preliminary injunction, temporarily blocking enforcement of the Act. However, the court’s order was limited to the plaintiffs in that case and did not extend its protections to HOAs.

Encouraged by the District Court’s decision, the Community Associations Institute (“CAI”) filed a lawsuit in the U.S. District Court for the Eastern District of Virginia seeking a similar result for its member-HOAs. Such result would not be forthcoming, however, as the Judge in that case denied CAI’s motion for preliminary injunction. CAI has appealed that decision to the United States Court of Appeals for the Fourth Circuit.

Thinking all hope was lost, many HOAs started the process of filing BOI reports with FinCEN. But, in the eleventh hour, the United States District Court for the Eastern District of Texas issued a nationwide injunction blocking the enforcement of the CTA and its reporting requirements. (Texas Top Cop Shop, Inc. v. Garland (4:24-cv-00478-ALM).) This ruling applies to all entities previously required to submit BOI reports, including HOAs within the State of California.

Since this injunction was just issued on December 3, 2024, it is unclear whether the Government will appeal the Court’s decision. More information on this is to come…

HOAs should monitor developments in this case and consult with their HOA legal counsel to stay informed of their CTA compliance and reporting obligations.

Email Discussions Between HOA Board Members are not “Meetings”

Published on: September 18, 2023 | by Steven J. Tinnelly, Esq. and Ellie Ghahari

*New Case Law

The Open Meeting Act (“OMA”) contains various provisions regulating how the board of directors of a homeowners association (“HOA”) may meet and conduct business. One of the most common questions we receive pertains to whether email exchanges between board members on items of HOA business constitute a “board meeting” under the OMA, even if those emails are merely for discussion purposes without any vote (or “action”) being taken on the item.

Fortunately, we finally have an answer to this question from the California Court of Appeals via its ruling in LSNU #1, LLC v. Alta Del Mar Coastal Collection Community Association (“Alta Del Mar”) that will have a significant, immediate and beneficial impact on HOA governance throughout California. That answer is no. Email exchanges/communications between HOA board members that merely discuss items of HOA business are not within the statutory definition of a “board meeting” under the OMA and are therefore lawful.

In Alta Del Mar, the HOA board was discussing, over email, two items of business that are relatively routine for HOAs: whether to approve a homeowner’s landscaping plans and whether to fine another homeowner. The plaintiff homeowner in Alta Del Mar claimed that this email discussion was considered a board meeting and thus violated the OMA by not affording the homeowner notice and an opportunity to be heard.

The Court rejected this argument with reference to two central provisions of the OMA upon which the homeowner relied in making their argument: Civil Code section 4090 (defining what constitutes a “board meeting”) and Civil Code section 4910 (prohibiting a board from “acting” on items of business outside of a board meeting). The Court’s interpretation of these provisions is summarized below:

Email exchanges between board members are not a “gathering” of the board, and therefore do not constitute a “board meeting”.

“By sending e-mails to one another through cyberspace, often hours or days apart and from different homes and offices, the Association’s directors did not simultaneously gather in one location to transact board business, and therefore they did not conduct a “board meeting” within the meaning of [the OMA].”

The OMA prohibits the board from “acting on” items of business outside of a board meeting, not from “discussing” those items via email outside of a meeting.

“By discussing items of Association business in e-mails… the directors did nothing contrary to the purpose of the OMA, because they took no action on those items in the e-mails. Although the OMA prohibits the board from acting on items of Association business outside a board meeting…it does not prohibit the board from discussing the items outside a meeting.”

Many HOA boards find it difficult to reserve all discussion on items of HOA business solely for the board’s regularly scheduled meetings. This is due to a variety of common factors, such as the large amount of business that must be discussed/acted upon at any given meeting, the intervals at which regularly scheduled Board meetings typically take place (monthly), and the need to share information regarding unforeseen or exigent issues that may arise between Board meetings. The Court’s holding in Alta Del Mar now confirms the ability of an HOA’s board members to freely email with one another to discuss items of business facing their community. This will allow for HOA boards to be in a better position to take appropriate and timely action on those items during their actual meetings.

New ‘Community Association Update Newsletter’ – Issue 57

Published on: March 3, 2023 | by Steven J. Tinnelly, Esq.

Newsletter-Issue-57-300x167 In case you missed it, Issue # 57 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

AB 1410 – Speech on Social Media; Room Rentals; Enforcement During Emergencies
AB 1738 – EV Charging Stations in Existing Multi-Family Developments
SB 897 – Accessory Dwelling Units
Artus v. Gramercy Towers
Fowler v. Golden Pacific Bancorp, Inc.

A link to the newsletter is here.

Need to be added to our mailing list? Click here to sign up. Links to previous editions of our newsletter can be found here.

The Benefits of Board Education

Published on: December 28, 2022 | by Carrie Heieck, Esq.

bigstock-Businesswoman-Raising-Hand-Up-230281444-scaled-1-e1668125240647 In the State of California, most HOA’s are non-profit corporations managed by a board of directors composed of volunteer homeowners elected by the membership. Boards derive their authority from the governing documents including the Articles of Incorporation, Bylaws, and Covenants, Conditions, and Restrictions (CC&Rs) that impose rules and restrictions on the use of property within the development. The board of directors, acting on behalf of the HOA, is responsible for the maintenance of the common areas of the property, enforcing the governing documents, and collecting assessments. While most boards delegate duties to management companies and rely on experts such as attorneys and CPA’s to aid in decision-making, the board is ultimately responsible for decisions and actions taken by the HOA.

HOA board members are not compensated for their services and are typically not experts or even very familiar with the strict requirements for HOA management. While new directors typically run with an altruistic motive to help their communities and “get things done,” it is important that they understand the structure of a community association, the association’s authority over the development and its owners, and the unique way an association is governed. Board education is a great way to familiarize new members with an overview of their duties and responsibilities and to provide a refresher for existing Board members so that the HOA runs smoothly, efficiently, and with minimal exposure to liability. Board education can also help protect directors for incurring personal liability for decisions made in the scope of their duties.

Board education is offered by management companies, law firms, CAI chapters, and others with expertise and knowledge in HOA governance. There is no one-size-fits-all educational program as the issues faced by HOA’s are often unique to each association. Some general topics for Board education include but are not limited to:

General Duties and Responsibilities of Directors
Laws Applicable to Common Interest Developments
Types and Hierarchy of Governing Documents
Business Judgment Rule
Conducting Meetings
Enforcement and Disciplinary Matters
Financial Responsibilities
Maintenance Responsibilities
Assessments & Collection
Director Conduct
Contracts

An educated board oftentimes results in a better-functioning HOA with less legal fees, less special assessments, less contentiousness, and higher property values. Board members who are willing to put personal differences and agendas aside, are open to considering expert advice and differing viewpoints, and who work collaboratively with other directors and in the best interests of the Association as a whole, are the directors who best serve their communities. While directors will always be subject to criticism since it is impossible to please everyone, with proper education, those directors’ actions will better withstand such scrutiny.

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

Evidence of Violations is Necessary

Published on: November 16, 2022 | by Vivian Tran, Esq.

pexels-photo-2179205 There will come a time when a homeowner violates an association’s governing documents (i.e., CC&Rs, Rules & Regulations, Architectural Guidelines…etc). If there is a possibility those violations will be litigated, the association must have a proper trail of evidence to bolster their claims.

Q: What are some types of violations that would need evidence?

A: Unapproved architectural improvements (i.e., walls, patio covers), failing to maintain property exterior in planned developments (i.e., shutters, paint, landscaping), inappropriate parking…etc.

Q: What should the association or its community manager do when there is this type of violation?

A: For these violations, the association’s community manager should clearly document in their written records: what the violation was, which governing documents provision was violated, who committed the violation, if known (e.g., an owner, guest, tenant), when the violation occurred (i.e., date and time), where the violation occurred, and anything else that might be relevant. Additionally, a photo of the violation should be taken on the date it occurred and reoccurred.

Q: How should the photo be taken?

A: The photo should be taken directly in front of the violation. There should be plenty of natural light to clearly see what type of violation it is. Flash should be utilized if it improves the picture quality. The photo should not be taken from within a vehicle because there will be light and color distortion; furthermore, the violation photo should not include portions of the vehicle. If there is a parking violation that occurs in the evening, any photos submitted by the association patrol vendor should be taken from the outside of a vehicle.

It is important that the photo be taken with a high-definition camera, if possible, so as to not be grainy or blurry. There should be no objects distracting from the violation (e.g., people, pets, vehicles).

Q: Why so particular about the violation photo and written evidence?

A: If the matter goes to litigation, the association will need to prove that a homeowner has committed the violation(s) alleged by the association. A judge will want to see actual physical photo evidence and clear documentation of the homeowner’s violation history. Without proper evidence, the association might have a hard time winning its case. If there is a clear violation history and evidence, the judge will be able to order the homeowner to correct the violations.

Even if the matter does not go to litigation, a proper trail of evidence will assist the association’s general counsel in dealing with the matter.

The association should request that management take a photo of every violation if they wish to properly retain evidence and enforce their governing documents. Without a photo, no matter how big or small the violation, the homeowner can always argue that the association was mistaken, and the violation never occurred. It would be a case of “he said, she said” argument that would go nowhere—it would definitely not hold up in court.

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

What the Cluck? Addressing Backyard Chickens in HOA’s

Published on: May 11, 2022 | by Carrie Heieck, Esq.

what-to-expect-when-youre-expecting-backyard-chickens-feature It 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. 4^th 1578).

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.