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Articles Posted in HOA Governance

NaggingCough*Asked & Answered

Asked We just found out that two homeowners in a community we manage are infected with COVID-19 and they are currently self-isolating in their Units. What must be done on our end and what information can we disclose to help prevent the spread?

Answered – Even if there is not a known case of Covid-19 in the community, Associations should be taking the pandemic seriously. This includes implementing full compliance with Governor Newsom’s Executive Order (“Order”) the Department of Homeland Security’s Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response referenced in the Order,  and the California Department of Public Health (“CDPH”) Guidelines (“Guidelines”). In short, the Executive Order mandates that everyone is required to stay home except to get food, care for a relative or friend, obtain necessary health care, or to perform an essential job. And, if one must leave their home, they must keep at least 6 feet of distance from others. Aside from the stay-home mandate, the Guidelines encourage people to wash their hands with soap and water for at least 20 seconds, to cover coughs and sneezes with a tissue, to clean and disinfect frequently-touched objects and surfaces, and, if soap and water are not available, to use alcohol-based sanitizer.

In response to the Order and Guidelines, Associations should be temporarily closing community recreational facilities, allowing staff and contractors (including management) to work from home where possible, implementing enhanced cleaning of any on-site facilities, postponing annual elections and Board meetings or working with counsel to determine how meetings may proceed virtually to comply with the Executive Order as well as the Davis-Stirling Act, and encouraging members to stay home and to use proper hygiene to avoid the spread of the virus.

If the Association is aware of a resident in the community infected with Covid-19, proper disclosures to the membership apprising them of the situation are recommended for heightened awareness with the goal of reducing the transmission of the virus between residents in the community.

Boards have a fiduciary duty to act in the best interests of their communities. Additionally, the Articles of Incorporation for many Associations state a corporate purpose of promoting the health, safety and welfare of the members. To that end, it is recommended that Associations disclose to members that resident(s) in the community have recently tested positive for Covid-19 and are in self-isolation. To protect the privacy of the infected members, names, addresses, and other identifying information should not be disclosed under any circumstances.

The intended effect of the disclosure is to: 1) inform the membership as to the virus’ presence in the community, a fortunate side effect of which is promoting trust and transparency; 2) educate members how to best protect themselves and their neighbors through following the Governor’s Order and the CDPH Guidelines by staying home and using proper hygiene; 3) apprise members what the Association is doing to stop the spread of the virus; and 4) instruct members per the CDC website, that if they think they have been exposed to COVID‑19 and develop a fever and symptoms, such as cough or difficulty breathing, they should call their healthcare provider immediately for medical advice.

California HOA lawyers Associations are encouraged to work with their counsel to prepare such disclosures given the legal implications of properly balancing the disclosure of private and sensitive information related to a member’s health with promoting the health and safety of the membership during a pandemic.

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

covid-19-1330pxOver the last few business days, our firm has received several calls regarding the Coronavirus (COVID – 19).  We understand the obstacles created by COVID – 19 because successful association governance depends upon engaged community involvement and personal interaction.

The purpose of this blog post is to provide a brief overview of our response to some of the common questions we have received.  It is based upon information which is currently available as of March 17, 2020.  The recommendations set forth herein are subject to change based upon governmental mandates.

Continuance of Necessary Business Operations:

Community associations, as non-profit corporations, should continue to perform essential business operations (i.e. collect Member assessments and pay Association bills) during this epidemic.  As of the time of this drafting (3/17/20), President Trump released new guidelines to slow the spread of COVID – 19 by advising the public to avoid groups of more than ten (10) individuals, among other safeguards.  Governor Newsome recommends that restaurants eliminate dine-in options and the closure of movie theaters and health clubs.  Medical professionals have uniformly taken the position that social distancing can minimize virus transmission.  In view of those protections, boards, in consultation with management and legal counsel, should consider the temporary closure of community-based events and functions, particularly in situations where residents constitute a high-risk demographic (i.e. age-restricted communities).

Board Meetings:

Board meeting procedure is regulated by an association’s governing documents and the Civil Code.  An association’s by-laws will set forth the frequency of board meetings.  Boards should consider postponing non-essential general session board meetings, or in the alternative, conducting essential association business in executive session only via teleconference as permitted by California law.  Boards may conduct general session and executive session board meetings via teleconference upon proper notice which identifies at least one physical location so that Members of the association may attend (Civil Code Section 4090 (b)).  At least one director or a person designated by the board shall be present at that location (Civil Code Section 4090 (b)).

To the extent possible, efforts should be made to protect Member rights, such as the right to attend board meetings and participate in homeowner’s forums.  How do we balance those rights with current social distancing recommendations? There might be a viable path under the Open Meeting Act.  Members possess the legal right to attend general session board meetings and shall be entitled to attend teleconferenced board meetings (Civil Code Section 4925). An argument could be made that Members may attend general session board meetings via teleconferencing means if such board meeting was previously noticed as a teleconference board meeting and the procedural requirements are satisfied as referenced above.  Discuss with legal counsel whether the Open Meeting Act could be interpreted to allow Member attendance (via audio and/or video means) at teleconferenced board meetings instead of physical presence at the meeting location.

We recommend that boards consult with legal counsel to discuss teleconferenced general session board meeting procedure before deciding to hold open meetings without members and then issuing minutes thereafter.  It is unclear how a superior court judge, in the event of a later Member challenge, might evaluate the handling of board meeting procedure during this current state of emergency.  A possible judicial response might be to review how the association attempted to substantially comply with the law using the governance tools that are presently available through the Open Meeting Act.

Member Notice:

Medical professionals state that individuals respond to crisis and stress in different ways; it is very likely that some may be scared while others may not be.  Residents may look to the association and management for guidance and direction.  For that reason, transparency is desirable.  Boards should work with their management partners and legal counsel to develop a policy statement which identifies how your community intends to respond to COVID – 19 with respect to association meetings and community affairs.  In the event of common area closure or facility limitations, notices should be posted which explain the board’s reasoning in that regard.  Association residents should be directed to governmental agencies (e.g. CDC, California Department of Public Health, and county health agencies) for more information.

On March 12, 2020, California Governor Gavin Newsom issued Executive Order N-25-20 (“Order”) which modified how legislative bodies may conduct public meetings via teleconference under the Brown Act.  That Order does not apply to private association meetings which are governed by the Open Meeting Act and we are not aware of emergency legislation that might govern how association meetings are expected to be handled during this health crisis.  Although not applicable, the spirit of the Order’s final provision should be considered as we think about association governance during this time; namely, the Order concludes by stating that, “all state and local bodies are urged to use sound discretion and to make reasonable efforts to adhere as reasonably as possible to the provisions of the … Brown Act, and other applicable local laws regulating the conduct of public meetings, in order to maximize transparency and provide access to their meetings.”

California HOA lawyers It is critically important that boards work closely with their management partners and legal counsel to develop practical solutions regarding Board governance which, to the extent possible, complies with the Open Meeting Act while protecting Member safety.

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

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

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

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

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

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

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

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

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

how-should-a-weak-leader-stand-up-against-butt-in-590b43b68caabHomeowners associations (“HOAs”) are governed by a group of volunteer members known as a “Board of Directors” (“Board”). Their primary responsibilities include: (1) managing the common areas, (2) managing the HOA’s finances, (3) setting policies to assist in the operation of the HOA, and (4) enforcing those policies along with the HOA’s governing documents. The Board is therefore vital to the effective operation and management of the HOA, as well as preserving the property values of the HOA’s members.

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

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

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

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

  1. Any observed violation shall be reported to the Manager in writing and shall include any supporting information (e.g., a detailed description of the violation, photographs, etc.).
  2. Thereafter, the Manager, and not the observing Board member, must comply with the procedural requirements contained in the HOA’s Policy, which typically requires the preparation and mailing of a “courtesy notice” to the offending resident advising same of the alleged infraction.
  3. If the violation continues to occur, the Board should direct the Manager to prepare correspondence inviting the offending resident to a hearing before the Board.
  4. At the hearing, the Board may impose discipline pursuant to the Association’s governing documents.
  5. The observing Board member must not communicate with the offending resident at any point during the enforcement process (unless otherwise authorized by the Board).
California HOA lawyers The foregoing procedure emphasizes the fact that the HOA acting through the Board, and not any individual member of the Board, enforces the governing documents. Following this procedure will mitigate the Board members’, and by extension, the HOA’s, liability exposure.

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

plumbing-890x600*New Case Law

One of the primary purposes for which a homeowners’ association (“HOA”) is formed is to maintain and repair the HOA’s common areas, as well as any other areas designated within the HOA’s recorded Declaration of Covenants, Conditions and Restrictions (“CC&Rs”) (i.e., HOA Maintenance Areas). Faithfully executing the maintenance obligations under the CC&Rs is important to preserve property values and generally enhance the quality of life of all residents residing in the community. Failure to do so may expose the Association to liability.

For example, in the recent case of Sands v. Walnut Gardens Condominium Association, the California Appellate Court held the HOA could be responsible for damages sustained by a homeowner as a result of a plumbing leak originating from a pipe on the roof of the condominium building (i.e., HOA common area). ((2019) 35 Cal. App. 5th 174, 176.) In Sands, the HOA repaired the pipe and the roof, but did not compensate the homeowners for the damages they sustained to the interior of the unit and their personal property. The homeowners sued the HOA for breach of contract and negligence.

In addressing the former first (i.e., the breach of contract claim), the Court of Appeal noted that the HOA had a contractual obligation under the CC&Rs to maintain the common area in “a first-class condition.” (Id.) A jury could find that the HOA breached that contract by failing to perform preventative maintenance, and by failing to periodically inspect the pipes and roof. The Court dismissed the HOA’s argument “no evidence showed [that] the [HOA] was ‘on notice that it needed to make repairs or do something to the roof or the pipes.’” (Id.) Rather, it was sufficient that the HOA knew that no maintenance was being performed, which a jury could find as a breach of the CC&Rs’ requirement that the common area be maintained in a first-class condition.

However, as to the second cause of action for negligence, the Court sustained the trial court’s judgment of nonsuit (i.e., the homeowners failed to present sufficient evidence to conclude that the HOA was negligent). The Court noted that “the [HOA] had no independent duty as to the pipes and roof arising from tort law.” (Id. at p. 177.) In other words, absent a showing of a duty independent of the CC&Rs, an HOA cannot be held liable for the tort of negligence.

This case is important for several reasons. First, while the Rule of Judicial Deference generally requires courts to defer to maintenance decisions made by HOA boards even if a reasonable person would have acted differently in the same situation, the rule does not protect HOAs when they fail to perform any preventative maintenance and/or periodic inspections. Thus, a HOA should not wait until it receives maintenance requests and/or notice from homeowners concerning the need for common area repairs; rather, the Board should consult with experts and establish a preventative maintenance program addressing all common areas.

Second, there is no separate tort claim (e.g., negligence claim) for a HOA’s failure to maintain the common area. This is not to say, however, that a HOA will not be liable under a negligence theory for other reasons. For example, if a HOA voluntarily assumes a duty to protect residents from criminal activities and breaches that duty, the HOA may be held liable for negligence. (See Frances T. v. Village Green Owners Association (1986) 42 Cal. 3d 490.) The language contained in Frances T. also seems to suggest that a HOA may be found negligent for failing to maintain the common area which results in personal injuries. (Id. at p. 499.)

California HOA lawyers The case of Sands v. Walnut Gardens highlights the importance of properly executing maintenance obligations under the CC&Rs. While the Board is granted judicial deference in determining how the common areas are to be maintained, a HOA may be held liable for its failure to investigate maintenance problems and to take reasonable action. (See Affan v. Portofino Cove Homeowners Association (2010) 189 Cal. App. 4th 930 [the deference afforded to HOA Boards may not extend to situations where the Board fails to act or to investigate the scope of required maintenance or repairs].) HOA Boards should therefore consult with experts to establish and execute an appropriate common area maintenance plan.

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

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

Design

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

Rules

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

Some rules to consider include the following:

  • Dogs are permitted to be off leash while in the dog park provided that they are able to respond to audible controls, such as whistling.
  • Dogs must be leashed upon exiting the dog park.
  • Dog owners shall remain in the dog park and shall maintain visual observation of their dog at all times.
  • Dogs must be current on all vaccinations.
  • Dogs with known violent propensities or aggressive behavior are prohibited from using the dog park. Any dog showing signs of aggression while in the dog park shall be removed immediately by the dog owner.
  • Owners shall pick up their dog’s waste. Waste must be put in a tightly sealed plastic bag before being disposed of.
  • Owners are required to fill any holes created by the owner’s dog.
California HOA lawyers Dog parks are a great amenity but can increase a HOA’s liability exposure. It is therefore important for the Board to engage legal counsel before beginning the process of constructing and installing a dog park to ensure that the HOA is protected.

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

dji-drones-update-registration-2

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

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

Privacy

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

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

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

Property

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

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

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

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

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

Chained-Social-Media-Facebook-Twitter-YouTube-Regulations-Internet-900Like it or not, we live in the age of social media. It is undeniable and has dramatically transformed the way we communicate in every arena, including homeowners associations (“HOA”).  Information, opinions and images are broadcast and circulated at a rapid pace with little or no oversight involved.  These unfiltered transmissions over social media airwaves can have profound impacts on homeowners associations’ governance (board of directors), as well as its membership (homeowners).  Understanding the legal implications of social media use in the context of managed communities is critical to avoid conflicts, unexpected costs and legal battles.

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

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

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

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

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3-5_aba_little_tots*New Legislation

Governor Newsome recently signed into law Senate Bill 234 (“SB 234“), also know as the “Keeping Kids Close to Home Act.”  The new law will take effect on January 1, 2020.  SB 234 permits large daycare homes, which provide care for up to 14 children at one time, to operate within HOA communities regardless of contrary language in their CC&Rs.  The purpose of SB 234 is to increase the availability of childcare for families across the state by making it easier for daycare homes to operate in residential neighborhoods.

“It is the intent of the Legislature that family daycare homes for children should be situated in normal residential surroundings so as to give children the home environment that is conducive to healthy and safe development. It is the public policy of this state to provide children in a family daycare home the same home environment as provided in a traditional home setting.”

The California legislature previously declared that small daycare homes (those providing care for up to 8 children) were immune from HOA restrictions, like those against commercial use. (See H&S Code, section 1597.40(c).)  Prior to SB 234, local governments could decide whether to classify large daycare homes like small daycare homes or to subject the large daycare operators to additional restrictions and requirements.

In effect, SB 234 voids CC&R provisions that prohibit Owners from utilizing their properties as large daycare homes, so long as those Owners follow the necessary state licensing requirements and provide care for no more than 14 children.  The bill also informs those wishing to open daycare homes that remedies are available if the local governments or HOAs discriminate against them.

HOAs across the state should be aware that Owners have the right to open large daycare homes within the community, regardless of restrictions against commercial use or for single family use.  However, the new law does not allow Owners to violate other CC&R restrictions, like those prohibiting noise nuisances.

California HOA lawyers HOAs should always consult with their legal counsel when responding to Owners’ requests to open daycare homes within the communities in order to ensure compliance with the new state law and their CC&Rs.

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

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.