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Articles Posted in HOA Governance

no-kids-allowed*Asked & Answered

Asked – Our Association is seeking legal guidance regarding children playing in the common areas and driveways. Several homeowners have complained about the number of children playing without supervision.  Drivers report their concern for the children’s safety as there have been several reports of children almost hurt. The Board would like to know if they have the authority to restrict children from playing in the common areas and/or driveways? 

Answered – The short answer is that the Association would be exposing itself to a risk of liability under federal and state anti-discrimination laws by adopting a rule or policy that outright prohibited children from playing in the common areas; including the streets and driveways. This risk would extend to other rules that specifically apply to children only, as opposed to all members/residents of the community.    

Generally, an association should proceed with caution when attempting to create and/or enforce rules that specifically apply to children. Federal and state law provides that it is unlawful to limit the use of privileges, services, or facilities associated with a dwelling because of familial status (the law also recognizes other protected classes including those based on race, color, national origin, religion, sex, and disability). Familial status is generally defined as having one or more individuals under 18 years of age who reside with a parent or with another person with care and legal custody of that individual. The effect of association rules based on familial status is that families with children, and those children, are treated differently and less favorably than households comprised solely of adults.

Federal courts have found that an association engages in actionable discrimination when rules specifically target children without sufficient justification. For example, rules that restrict only children from the benefits and privileges of common areas or amenities (such as pools, parkways, streets, etc.) have been struck down as impermissible restrictions against a protected class; namely familial status.

An association pool rule that restricts children under the age of 16 from using the pool without adult supervision would be an example of an impermissible rule. An association may argue that such a rule is intended to protect children. However, it would be easy to demonstrate that many children that fall under the scope of the rule are far more proficient swimmers than many adults (e.g. junior lifeguards). However, a rule that prohibits children under 5 from using the common area spa without adult supervision would likely fare better if a legal challenge was brought because there is a clear and identifiable safety risk with children under 5, regardless of swimming proficiency. Specific adult-only swim hours would be another example of an impermissible rule.

To avoid the risk of a discrimination claim, associations should strive to craft and enforce rules that apply equally to all members and residents within a community. Facially neutral rules of general applicability are far more likely to withstand judicial scrutiny. Alternatively, if an association has a legitimate and compelling justification for a rule that only applies to children (or other protected class), the rule must be the least restrictive means to accomplish the identified goal. This is a high burden to meet, so counsel should be consulted to avoid unnecessary and costly issues down the road.

California HOA lawyers Associations should be aware that creating and/or enforcing rules that apply only to children (and other protected classes such as race, color, national origin, religion, sex, or disability) exposes an association to federal and state discrimination claims. Associations seeking to address legitimate concerns or issues, such as children’s safety, should work with counsel to create enforceable rules that steer clear of potential discrimination against protected classes.

-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.

Home-Equity-Bankrate*Asked & Answered

Asked – We are trying to obtain a loan to conduct much needed, overdue (albeit non-life threatening) repairs and remediation work within the Association. However, the CC&Rs requires us to obtain a 75% vote by the First Mortgagees (i.e., institutional lenders) to obtain the loan because it exceeds 5% of our budgeted expenses. Firstly, why are there provisions in the CC&Rs that protect First Mortgagees (such provisions seem to create unnecessary and nuanced obstacles for the Association)? Secondly, given the urgency of the repairs, how can we expedite the process of obtaining the First Mortgagees’ approval? In other words, what can we do if they do not respond?

Answered – Most, if not all, CC&Rs (“Declaration”) dedicate a section to first mortgagees (“Lenders”) often titled “Lender Rights.” These rights are provided by the Declaration to protect the interests of the Lenders by giving same voting rights in areas that potentially impact the Lenders’ security interests in a property (e.g., single family home, condominium unit) within the homeowners’ association (“HOA”). For instance, many Declarations require Lender approval to amend “material provisions” or make “material amendments” of the Declaration and/or HOA bylaws.

Material amendments that require Lender approval generally consist of provisions affecting the following (among other things):

  • HOA insurance obligations;
  • partition/abandonment of HOA property (i.e., common area);
  • dissolution of the HOA; and
  • maintenance obligations.

All of the above have one thing in common: they impact the Lenders’ security interests (i.e., first mortgages) on the properties within the HOA. For example, if the Declaration was amended to severely limit or eliminate HOA insurance obligations, the Lenders’ security interests are at risk since the properties and/or common area elements are uninsured. Consequently, if a natural disaster occurs and destroys the community, Lenders lose their security interests and are unable to recoup the debt.

For the same reason, most Declarations, if not all, require HOA’s to obtain Lender approval (in addition to membership approval) for an HOA to pull out a loan in excess of a certain threshold (generally loans in excess of 5% of the prior fiscal year’s budgeted expense). This is because if an HOA is able to pull out a loan from a financial institution (“Institution”) without Lender approval and subsequently defaults on the loan, it puts the Lenders at risk of not being able to recoup their respective debts owed by the homeowners. For instance, should the HOA default on the loan, assessment rights are generally assigned/transferred to the Institution (via loan terms). This cripples the HOA’s ability to upkeep and maintain the community, resulting in decreased property values and ultimately hurting the Lenders’ security interests.

Understandably, many HOA’s are frustrated with the additional obstacle of obtaining Lender approval as it increases cost and time to approve certain actions. However, most Declarations will contain a provision (“Provision”) such as the following:

A Lender who receives written request to approve an amendment or action herein and does not deliver or post to the requesting party a negative response within thirty (30) days shall be deemed to have approved such request.

In most cases, this gives HOA’s an “out” because Lenders generally do not take the time to review and submit a vote. However, while most Declarations contain such a Provision, it is not uncommon to come across some that are lacking. Not to worry, this does not mean that HOA’s without the aforementioned Provision are stranded and helpless, thanks to California case law.

In Fourth La Costa Condominium Owners Association v. Barbara Seith (2008) 159 Cal.App.4th 563, the Appellate Court (affirming the Trial Court’s decision) ruled that the HOA’s ballot measure to Lenders (sent via Certified Mail, Return-Receipt Requested) that indicated their failure to return an executed ballot within thirty (30) days shall be deemed “consented” to, was an acceptable method of obtaining “written consent” from the Lenders. (Seith, at 573.) In particular, the Court found that the Lenders’ “written consent” was effectively obtained by the Lenders’ signatures on the return-receipt coupled with the “30-day verbiage,” indicating Lenders’ silence as consent.

California HOA lawyers While most HOA Declarations will have the relevant Provision, HOA’s that do not and are seeking to make a certain amendment or perform a certain action requiring Lender approval may simply send out ballots to Lenders (1) via Certified Mail, Return-Receipt Requested, and (2) provide the 30-day verbiage to obtain “written consent.” Furthermore, HOA’s may seek to amend the Declaration to eliminate the Lender approval requirement altogether; this allows HOA’s to make certain actions/amendments in the future without expending resources in obtaining Lender approval. 

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

contractorportal_12columnOur industry depends on a close network of skilled industry professionals who are dependable and responsive.  Emergencies are common, particularly in condominium developments where breaks in shared or common water lines can lead to disaster.  Quick action by association vendors can extinguish the root cause of the emergency and potentially reduce, if not eliminate, thousands of dollars of damage.  Ideally, the vendor’s scope of work should be limited to those actions only; however, vendors occasionally wade into dangerous waters when they (albeit innocently) strike up conversations with residents about damage responsibility.  Do the following real-life examples sound familiar to you?

A plumbing invoice states:

“Service call.  Performed leak detection.  Source of leak found to be Owner responsibility.  Water line is leaking and needs to be replaced.”

A resident says the following to the association’s community manager, “Your roofer told me that the ceiling leak is the HOA’s responsibility.  Why shouldn’t I believe him?  Wasn’t he hired by the HOA?”

Community managers and board members routinely rely upon trained vendors to provide competent services in one of two (2) contexts: preventative maintenance and reactionary repairs.  As to the latter, reactionary repairs, which are usually of an emergent nature, may involve vendor entry into a separate interest and the presence of a concerned resident.  In that circumstance, residents have been known to question the vendor regarding loss responsibility.   Cornered, the vendor might feel obligated to provide an answer.  Vendor communication in that regard is rarely beneficial to the association – especially in those infrequent situations where the resident seeks to manipulate the dialogue to develop a potential legal claim.

When working at a residence, vendors should try to limit resident dialogue except as necessary to perform the work that they were hired to perform.  Why? Vendor opinions regarding fault or responsibility may not be correct.  Responsibility likely depends upon a review of the association’s governing documents, among other things.  Most vendors are not trained to analyze the responsibility allocations set forth in the association’s declaration; indeed, a responsibility allocation in one context may not necessarily be the same in another situation because governing documents usually differ.  Second, vendor statements can create public relations challenges for management and board members when they try to explain to an upset resident why the vendor’s in-field statements are not accurate.  Most significantly, vendor representations could potentially bind the association under a legal theory called ostensible agency.

Ostensible agency occurs when the principal (i.e. the HOA) intentionally, or by want of ordinary care, causes a third person (i.e. the resident) to believe another (i.e. the vendor) to be his agent who is not really employed by him (Civil Code Section 2300).  Under California law, a resident can argue that the vendor is an [ostensible] agent of the association by proving that the association carelessly created (by want of ordinary care) the impression that the vendor was an agent or employee of the association; and that the resident was harmed because he or she reasonably relied on his or belief (California Civil Jury Instruction 3709).

How do management professionals and board members avoid the possibility of binding statements by an unassuming vendor?  Exercising ordinary care by vendor education at the outset of the vendor relationship.  If possible, vendor agreements should include contract language which prohibits vendor communication (orally and in writing) with residents regarding responsibility after a loss.  Before repair work begins, vendor employees should be told that their role is limited to stopping the problem and, if warranted, developing a repair plan.  They should be reminded that they have been hired by the association, and as such, are obligated to report their factual findings only to the association; vendor invoices should not include responsibility or fault determinations.  Perhaps most importantly, vendors should be forewarned about the possibility of resident confrontation – and instructed to politely tell residents that their responsibility inquiries should be directed to management or the board for review.

California HOA lawyers Existing vendor and association relationships can be strengthened by a mutual understanding of the vendor’s expectations when interfacing with a resident.  It is critical that vendors and HOA leaders stay aligned so that potentially inaccurate in-field responsibility determinations do not become the basis of a future legal action involving the association.

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

16106042-10158060050850114-2869680242197711700-n-1484846578*New Legislation

On July 30, 2019, SB 652 was signed into law by Governor Gavin Newsome in response to several incidents in which a homeowner’s association (HOA) asked a resident to remove a mezuzah from their unit’s entry door or doorframe.  A mezuzah is a small scroll that is affixed to the doorframe of Jewish homes to fulfill the mitzvah (Biblical commandment).  For observant Jews, this is not a choice, but rather, a religious duty.  Attempts to bar them from fulfilling this duty violated their religious freedom, argued Jewish residents.

In Connecticut, an HOA threatened to fine a resident fifty ($50) dollars if she did not remove the mezuzah affixed to her doorframe.  The HOA permitted religious displays (e.g. Christmas wreaths) on doors, but restricted any adornments from being placed on exterior walls.  The HOA argued that doorframes are considered exterior walls.

In Florida, an HOA ordered a resident to remove a mezuzah, citing its bylaws prohibiting owners and occupants from attaching, hanging, affixing or displaying anything on the exterior walls, doors, balconies, railings and windows of the building.

In New York, an HOA fined a resident fifty ($50) dollars for affixing a mezuzah to her doorframe shortly after she moved in.  The HOA cited its bylaws prohibiting residents from altering the exterior of their home without approval from the Association.  The rule included affixing of signs, advertisements or statuary.

While there were only a handful of instances nationwide in which a resident was asked to remove a mezuzah, the bill was designed to have a broader scope in protecting any displays of religious items on doors and doorframes so long as the display reflects “sincerely held religious beliefs.”  Specifically, SB 652 prohibits a “property owner” (defined to mean an HOA, an HOA board, or landlord) from adopting or enforcing any rule that prohibits the display of one or more “religious items” on an entry door or doorframe.  The bill defines “religious item” to mean any item displayed “because of sincerely held religious beliefs.”  The bill also identifies reasonable exceptions, such as allowing an HOA or landlord to prohibit the display of anything that threatens public health or safety, violates existing law, contains obscenities, hinders the opening or closing of any entry door, or is larger than 36” by 12” inches.  Also, an HOA may require a separate interest owner to remove a religious item as necessary to perform maintenance on a door or doorframe.

Prior to SB 562, federal and state law provided some protections against religious discrimination in housing, but the author of the bill believed that these protections were not sufficient enough to protect the display of religious items.   For example, the federal Fair Housing Act (FHA) prohibits housing discrimination on the basis of religion.  Likewise, the state Fair Employment and Housing Act (FEHA) makes it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the religion of that person. (Gov. Code § 12955.)  The Davis-Stirling Act, which regulates homeowner’s associations and common interest developments, contains a provision that prohibits the HOA governing documents from prohibiting the posting or displaying of noncommercial signs, posters, flags, banners, on or in an owner’s separate interest, subject to certain exceptions.  (Civil Code § 4710.)  To the extent that a “religious item” is a sign, poster, flag, or banner, one could argue that existing law already prohibits an HOA from adopting or enforcing any rule that bans the display of religious items.  But arguably there is a question of whether a mezuzah or cross hung from a door is a “sign.”  SB 562 eliminates that ambiguity by protecting any “item” which is displayed because of a sincere religious belief, whether or not it is a “sign.”

SB 652, which takes effect January 1, 2020, will likely conflict with many HOA policies, which have aesthetic and architectural rules that bar hanging anything on an entry doorframe.  According to the author of the bill, such restrictions from HOAs leave the affected people unable to freely practice their religious obligations and in some instances are forced to leave their residence and seek another place to live.  By passing this bill, California’s legislature has followed the recent trend in caselaw suggesting that the religious freedom of individuals should take precedence over the communal interests of homeowner’s associations.

California HOA lawyers Notwithstanding, it is important to note that the right afforded to HOA members and tenants in this bill is extremely limited, only applying to a “religious item” and, even then, only when the item is posted on an entry door or doorframe.  For instance, the bill would not provide protection to an owner who wanted to post a similarly-sized religious item in a window, or a door other than an “entry” door.   

-Blog post authored by TLG Attorney, Reuben D. Kim, Esq.

residential-packageAs security technology becomes less expensive and more accessible to average consumers, homeowners are provided with an exponential increase in available options for exterior security devices. A cursory Amazon search reveals hundreds of such devices including motion sensor lights and home camera offerings that can be accessed remotely from the convenience of one’s smart phone. Given the benefits and low cost, many homeowners have installed security systems in and around their residences to mitigate the risk of theft, property damage, and other criminal activity. As purchases and installations of these devices increase, associations and architectural committees are increasingly confronted with the conflict between the owners’ interest in safety and security, and the association’s interest in uniform aesthetics and neighborhood privacy.

Association Regulation and Liability

Most common interest developments are structured and organized where the association maintains the residence/building exteriors and has the ability to regulate improvements attached and/or integrally related to them. This authority generally includes the ability to approve or deny owner applications to install exterior security devices. Some associations with strict architectural approval procedures may be inclined to significantly limit or outright reject owner installed exterior security devices. However, this approach can expose an association to potential liability, especially where there is a demonstrated need for such devices.

In the case of Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, the California Supreme Court held that a homeowners association stands in relation to owners as a landlord and can be liable for breaches of traditional landlord duties such as failing to address unreasonable risks of criminal activity. The Court found that there was ample evidence to place the association on notice of an unreasonable risk to the plaintiff’s safety, and the failure to act or to allow the owner a self-help remedy subjected the association to liability.

In light of the holding in Frances T., associations should avoid outright prohibitions on owner installed exterior security devices. Instead, associations should develop and implement a comprehensive policy that governs the application, approval, and installation process for such devices. Such a policy allows the association to control the aesthetic characteristics, installation locations, and fields of view (for cameras) necessary to preserve the aesthetic appearance of the community, while preventing the devices from intruding into the seclusion of other residences and infringing privacy rights.

Exterior Security Device Policy

When developing an exterior security device policy, one of the primary considerations should be to limit the risk of invading the privacy of other residences. Generally, there is no recognized right of privacy in common areas. However, California acknowledges that privacy interests can be infringed through devices that provide a technological intrusion from otherwise lawful vantage points. Civil Code section 1708.8(b) states in pertinent part:

A person is liable for constructive invasion of privacy when the person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image . . . or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image . . . or other physical impression could not have been achieved without a trespass unless the device was used.

Under the guidance of the foregoing prohibition against such privacy infringement, any approval of exterior security devices should be focused on ensuring that the primary purpose of the device is to advance the security interests of the applicant owner, and the device does not present an unreasonable risk of privacy invasion to other residences.

To limit the risk of privacy intrusions, a security device policy should contemplate the following requirements:

    1. An installation plot plan/map should be submitted by the applicant to indicate the intended installation locations and their corresponding fields of view for any visual recording devices such as cameras.
    2. Such fields of view should not be permitted to observe neighboring residences, exclusive use, or common areas. Depending on the development/community layout, some installations may not be possible without capturing some of the foregoing areas (such as a doorbell camera that points towards common area). The association body tasked with the review and approval of security device installations should ensure that in such cases, the primary purpose is to advance the security interests of the applicant and that any common area field of view is merely incidental and as limited as possible.
    3. Cameras must be “fixed view”, without panning capabilities.
    4. Finally, any approved installations should be revocable if the device violates the privacy of neighboring residences so as to constitute a nuisance.
California HOA lawyers Given the limitless permutations of common interest developments and their various layouts, there is no one size fits all approach to resolving the complex issues surrounding owner installation of exterior security devices. As such, consult with legal counsel to develop workable solutions to advance the association’s interests, while preserving the owners’ interest in security and privacy.

-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.

Neighbor-Disputes-8-Smart-Tips-to-Legally-Deal-with-Nuisance-Caused-by-Nasty-Neighbors*Unpublished Opinion

The Court of Appeals recently rendered an unpublished opinion in  Harbour Island Condominium Owners Association, Inc. v. Alexander (2019), which provides some clarity regarding a tenant’s right to attend board meetings and the ban on noxious activities within the community.

The Harbour Island Condominium Owners Association (“HOA”) sought a restraining order (known as a preliminary injunction) against two tenants and their landlord to abate the tenants’ noxious behavior.  The HOA relied on the provision in the CC&R’s, which stated that residents cannot disturb the neighborhood or occupants of a neighboring property or create a nuisance.

Neighboring residents made several complaints to the HOA about the tenants’ excessive and purposeful noise: the tenants consistently stomped on their floors and slammed their doors.  In addition to the noise complaints, tenants permitted their dog to urinate in the Common Area, despite the posted “No Dogs” signs.  Lastly, the tenants engaged in aggressive behavior against the Board of Directors in an apparent attempt to intimidate Board Members.  For example, the tenants secretly photographed a Board Member at the pool on different occasions.

The trial court granted the preliminary injunction, ordering the tenants and their landlord to install throw rugs throughout the unit and a sound-muffling device on the doors; to cease photographing Board Members; and to prevent their dog from urinating on the Common Area.  The trial court ruled in favor of the HOA because the tenants’ noxious behavior unfairly oppressed the rest of the community, while the ordered corrective measures were minimally oppressive to the tenants.

The Court of Appeals upheld the trial court’s decision.  Despite the fact that the HOA’s nuisance provision did not mention dogs, the Court broadly interpreted the existing provision to encompass the exclusion of dogs from the Common Area for health and safety reasons.

Furthermore, the Court held that the nuisance provision bans acoustic nuisances that interfere with a neighbor’s right to quiet enjoyment.  In this case, the nuisance claims were supported by credible witness testimony that the tenants’ noise was excessive.

Lastly, the Court of Appeals disagreed with the tenants that their due process rights had been violated since the tenants were not permitted to challenge the violation notices at hearings.  The Court held that only Owners with vested property rights are Members of the HOA.  As such, only Members may participate in HOA meetings.

California HOA lawyers The Harbour Island case highlights the broad reach of nuisance provisions in CC&Rs and serves as a reminder that Owners, not tenants, have the right to attend and participate in HOA meetings. 

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

*New Library Article!

Untitled-1

Workplace harassment and hostile work environments are nothing new for management professionals.  Emotionally charged conversations can become uncomfortable and antagonistic for many managers.  Unfortunately, such dialogue frequently crosses the line from demanding direction to demeaning personal attacks.

Previously, employer liability for employee claims based on nonemployee conduct was generally limited to sexual harassment.  Effective January 1, 2019, newly adopted California law (Senate Bill 1300) lowers the burden by which California employees can bring successful harassment claims against California employers and expands the scope by which those employers may now be responsible to their employees for third party, nonemployee conduct, among other things.

Our HOA attorneys have authored a new article to generally summarize SB 1300 and to discuss its application to common interest development practice.

hoa laws The article, entitled “Workplace Harassment in a HOA Environment,” is available for download from our firm’s library. You can access the article by clicking here.

imgAmending a HOA’s Declaration of Covenants, Conditions and Restrictions (“CC&Rs”) can be a challenging endeavor. This is true, in large part, to the onerous approval requirements imposed by the CC&Rs themselves. Indeed, many CC&Rs require a super-majority (i.e., 67% or more) of the HOA’s members to approve an amendment. Such requirements make it difficult for an association to pass a proposed amendment, often as a result of member apathy or lack of participation in the voting process.

When this occurs, California Civil Code Section 4275 provides a mechanism for a HOA to “petition the superior court of the county in which the common interest development is located for an order reducing the percentage of affirmative votes necessary for such an amendment.” Section 4275 thus serves to provide a HOA “with a safety valve for those situations where the need for a supermajority vote would hamstring the association.” (Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472).

Accordingly, in order to successfully bring a petition to reduce the percentage of affirmative votes necessary to approve an amendment to the CC&Rs, a HOA must demonstrate the following:

  1. Adequate notice of the proposed CC&R amendment was given;
  2. Balloting was conducted properly pursuant to the CC&Rs and the Act;
  3. Reasonable efforts were made to solicit approval from the members;
  4. More than fifty percent (50%) of the eligible members voted in favor of the amendment;
  5. “The amendment is reasonable[;]” and
  6. “Granting the petition is not improper….”

(Cal. Civ. Code § 4275(c).)

In the recent case of Orchard Estate Homes, Inc. v. The Orchard Homeowner Alliance, the California Court of Appeal rejected an argument brought by a group of homeowners (The Orchard Homeowner Alliance) objecting to the HOA’s petition to reduce the percentage of affirmative votes necessary to amend their CC&Rs. ((2019) ___ Cal.App.4th ___, 2019 Cal.App.Lexis 144.) (“Orchard Estate”) In particular, and relying on the Mission Shores Assn v. Pheil case, the homeowners argued that, in order to prevail on their petition, the HOA must demonstrate that the CC&R amendment failed due to “voter apathy.” ((2008) 166 Cal.App.4th 789, 794-95 (stating that section 4275 of the California Civil Code was to “provide homeowners associations with the ‘ability to amend [their] governing documents when, because of voter apathy or other reasons, important amendments cannot be approved by the normal procedures”).)

The Court in Orchard Estate rejected this argument, noting that the statutory language contained in California Civil Code section 4275(c) clearly and unambiguously identified the “elements required to be established to authorize a reduction in the required voting percentage to amend a provision of the governing CC&Rs.” (Id. at p. **6-7.) As such, the Court was unwilling “to imply an element that was not expressed by the Legislature” based on off-hand statements made in appellate decisions. (Id. at p. *7.)

California HOA lawyers Although the Orchard Estate case appears to make CC&R amendments easier to accomplish, Board members should nevertheless be aware that amending CC&Rs can be an expensive endeavor. Therefore, it is important for Board members to discuss potential CC&R amendments with the HOA’s legal counsel to determine if they are necessary and/or advisable, or if other avenues are available to achieve the Board’s desired result.

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

zoning*Asked & Answered

Asked – We are thinking about granting a variance to the Covenants of our Homeowner’s Association.  The question is:  would the Variance, if granted, apply to the next landowner (i.e., does the grant of a variance run with the land)?

Answered – A homeowners association’s (“HOA’s”) governing documents may permit the HOA to, under limited and extraordinary circumstances, issue a variance from compliance with one or more of the HOA’s architectural standards. Because the decision to grant a variance has been held to be analogous to the issuance of a zoning variance by an administrative agency, HOAs are limited to granting variances in unique and extraordinary circumstances where substantial evidence would justify the desired variance. (See e.g., Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 652, quoting Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517-18.)

For example, and with respect to zoning variances, said variances are granted “only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification.” (Cal. Govt. Code § 65906.) Thus, it is the unique nature of the land and its surroundings which would justify the issuance of a zoning variance, not necessarily the individual desires of the property owner.

Cases which have discussed variances in the context of a HOA have not addressed the issue of whether architectural variances are perpetual in nature (i.e., whether the grant of a variance runs with the land and binds future property owners). As such, and given the Court’s treatment of architectural variances as being analogous to the issuance of a zoning variance, it is important to examine the scope of a zoning variance to determine whether said variance applies individually to the owner of the property when the variance is issued, or if it applies to the property upon which the variance is given and therefore runs with the land.

In Cohn v. County Bd. Of Supervisors, the California Court of Appeal held that a variance from the general plan of zoning for use of property was “not personal to the owner at the time of the grant, but [was] available to any subsequent owner….” ((1955) 135 Cal.App.2d 180, 184, quoting 62 C.J.S. § 547 (now 66 C.J.S. § 472.) In other words, the variance runs with the land and binds future owners. (Id.) Accordingly, given the similar treatment of architectural variances to zoning variances, it is reasonable to conclude that such architectural variances are not personal to the owner at the time of issuance by the HOA, but runs with the land and binds future owners of the property.

In light of the binding nature of architectural variances, there may be circumstances where it would be prudent for the HOA to document such variance through a recorded agreement or covenant. This is particularly important where the HOA’s approval is conditioned upon continued action by the property owners (e.g., maintenance and indemnification). Moreover, although the property owner would have an affirmative obligation to disclose the existence of any variance granted and/or any obligations imposed by the Association in connection therewith (see generally, Kovich v. Paseo Del Mar Homeowners’ Assn. (1996) 41 Cal.App.4th 863), a recorded agreement is the most dependable way of ensuring that future owners are on notice of the existence of the agreement and they assume upon purchase.

California HOA lawyers Board members must be cautious when granting variances to architectural standards, doing so only where extraordinary circumstances warrant. When a variance is granted, the Board should ensure that any conditions imposed on such approval is clearly stated in the Board’s decision, and, in some circumstances, documented in a recorded agreement. Accordingly, the foregoing highlight’s the importance of involving the HOA’s legal counsel to guide the Board in determining whether a variance should be documented by way of a recorded agreement.

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

anti-SLAPP*Unpublished Opinion

The recent unpublished opinion of Chemers v. Quail Hill Community Association et al. (2018) shines some light on the oft-misunderstood California Anti-SLAPP statute and its effectiveness as a defense for actions by a homeowners association’s board of directors.  The Fourth District California Court of Appeal held that certain actions by the board in a dispute with a director were not in furtherance of the right of free speech or petition as to be protected by the anti-SLAPP statute.

Plaintiff Evan Chemers (“Chemers”) was a member of the board of directors for defendant Quail Hill Community Association (“Quail Hill”), a planned unit development located in Irvine, California.  A series of disagreements and escalating tension between Chemers and other members of the board resulted in the board taking affirmative steps to remove Chemers from the board permanently.  In June 2016, the board proposed a resolution to create an executive committee consisting of all board members except for Chemers, and in July 2016, the board proposed a resolution to declare Chemers’ board seat vacant on the ground that he did not meet the member-residency requirement.  Chemers was not afforded an opportunity to present any evidence of residency, address the board, or have his legal counsel present when he was formally removed.

In October 2016, Chemers filed a lawsuit against the association and other directors, alleging eight causes of action including breach of governing documents, breach of fiduciary duty, negligence, declaratory relief, and various violations of the Civil Code and Corporations Code.  In response, the defendants filed an anti-SLAPP motion seeking an order striking the complaint and the eight causes of action within it.  The trial court granted the moving defendants’ anti-SLAPP motion as to six of the eight causes of action.

Chemers subsequently appealed the trial court’s decision, and the Court of Appeal concluded that the trial court erred by granting the anti-SLAPP motion as to the claims alleged against Quail Hill for breach of contract, violation of Civil Code section 5850 et seq., and for two counts of declaratory relief.  The Court of Appeal reasoned that none of those four causes of action arose out of protected activity – whether speech or petitioning activity – within the meaning of the anti-SLAPP statute.

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