HOA Governance

(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.

How to Handle Potential Conflicts of Interest

Published on: March 9, 2022 | by Vivian Tran, Esq.

download Conflicts of interest present possible liabilities that homeowners associations (“HOAs”) should do their utmost to avoid. There are issues that need to be deliberated and decided upon by the Board of Directors; however, in some situations, not all Directors should take part in the decision-making. A common scenario includes a situation where the Director might have a material financial interest in the outcome; or, the Director is violating the governing documents and should not decide on their own disciplinary consequences. Therefore, to keep all lines of communication and responsibilities clear, the Board should watch out for potential conflicts of interest and take the necessary steps to insulate the HOA and the Director from actual conflicts of interest. Some further examples of both potential and actual conflicts of interest could include:

Property damage to common areas abutting a Director’s property.
HOA litigation matters that could directly implicate a Director.
Capital improvements to common areas that would be advantageous to Directors.
The HOA contracting with vendors who have prior relationships with Directors without properly being vetted by neutral parties and/or management.
Using HOA funds to involve legal counsel to aid in a personal vendetta between a Director and HOA member.

What Should the Board Do If There Is A Potential Or Actual Conflict Of Interest?

Pursuant to Corporations Code section 7212, the Board may, by resolution adopted by a majority of the number of Directors then in office, provided that a quorum is present, create an executive committee consisting of two or more Directors, to serve at the pleasure of the Board. The Board has complete control over all committees. This means that the Board will decide who may serve in the committees and what authority they will have, subject only to the restrictions in the governing documents.

Accordingly, if there were any potential or actual conflicts as mentioned above, legal counsel for the association should broach the idea of the Board creating an executive committee around the conflicted Director. While Directors are well-meaning, if their financial interests, property, or personal self are implicated in any way, it would be difficult for the respective Directors to act as a Director (i.e., in good faith and in the best interest of the HOA) and not as a homeowner. This could be quite detrimental for the HOA and possibly even for the Director themselves because if there is an actual conflict of interest, that Director would be exposing themselves to personal liability; and the HOA’s Directors and Officers insurance might not be applicable if the Director acted outside the scope of their duties and decided on matters in such a way that would not benefit the HOA.

Therefore, it would be prudent to resolve any potential conflicts of interest by removing the Director from any decision they might be personally involved in and forming an executive committee around that respective Director. Should the Board have difficulty with this task, it might be best to enlist legal counsel’s help in explaining liabilities and conflicts of interest to all parties involved.

Note that if an executive committee is comprised of enough Directors so as to establish a quorum of the Board, any meeting of that committee could constitute a Board meeting that is subject to the Open Meeting Act’s requirements. Additionally, executive committees must maintain minutes pursuant to Civil Code section 5210 and make them available for inspection by the members within fifteen (15) days following approval.

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

Unmasking Your HOA’s Common Area Facilities

Published on: February 17, 2022 | by Matthew Plaxton, Esq.

hoa-masks-covid-300x200

California has lifted its indoor mask mandate for vaccinated individuals. While most HOA industry professionals took the position that the mask mandate did not apply to common interest developments and the HOAs that govern them because such facilities are not “places of public accommodation” (see Carolyn v. Orange Park Community Ass’n (2009) 177 Cal.App.4th 1090), for those imposing such a requirement, starting February 16th, they no longer need to require the use of masks for vaccinated individuals while inside common area facilities (e.g., HOA clubhouses, gyms, etc.).

This does not mean that HOAs are necessarily required to obtain proof of vaccination; rather, HOAs can simply post signage requiring residents to wear mask if unvaccinated. Moreover, some local mask mandates remain in place despite the State easing their restrictions. It is therefore important for each association to check with local authorities to determine what restrictions remain in place.

HOA Boards of Directors and management professionals that have questions regarding what common area facility policies must be in place to satisfy State and local requirements with respect to COVID-related issues should contact their HOA lawyer for guidance.

-Blog post authored by TLG Partner, Matt Plaxton, Esq.