HOA Governance

Re-Opening HOA Facilities on an Honor System

Published on: January 20, 2021 | by Steven J. Tinnelly, Esq.

ResearchingThePost-COVIDGymExperience We have previously blogged about successfully re-opening the common area amenities during the COVID-19 pandemic. Homeowner Associations (HOAs) are tasked with various responsibilities, including the health and safety of their memberships. California has made it clear that all businesses and facilities must follow the industry guidance to reduce the risk of COVID-19 before reopening. Willfully disregarding the state government directives and subjecting the membership to COVID-19 exposure is antithetical to this purpose. As such, it is possible for HOAs to expose themselves to substantial liability if they re-opened the common area facilities using only a member honor system to enforce the industry guidance to reduce risk of COVID-19.

California has a new blueprint (“Blueprint“) for reducing COVID-19 transmission in the state with revised criteria for loosening and tightening restrictions on activities. Every county in California is assigned to a tier based on its test positivity and adjusted case rate for tier assignment including metrics from the last three (3) weeks. HOAs’ management should routinely check the restriction criteria that is respective to each HOA’s county. For example, as of December 30, 2020, Orange County and San Diego are under a Regional Stay Home Order meaning many non-essential indoor business operations are closed. Pursuant to government directives, gyms and fitness centers can open outdoors only with modifications. Indoor pools, hot tubs, saunas, and steam rooms must close. Also note that each county may impose further requirements that are stricter than the state government directive.

Understandably, HOAs have probably not accounted for a pandemic in their prior operating budget, so retaining extra personnel to enforce health guidelines would no doubt put a strain on already allocated financial resources. However, in the interest of being safe, HOAs should follow the Blueprint and industry guidance policies, particularly when it comes to re-opening common area facilities. It is quite difficult to rely solely on HOA members and their guests to conform with both California State and County guidelines regarding the re-opening of HOA common area facilities. There are always a few outlying members unwilling to cooperate and keep clean the common areas/equipment after usage, thus leaving HOAs in a situation where HOAs may become liable.

As a reminder, HOAs and the Board of Directors have an obligation to keep common areas safely maintained to ensure the health and safety of their memberships. As such, re-opening HOA common area facilities without a proper plan, protocols, and monitoring system puts the safety of an HOA’s membership in question and is antithetical to an HOA’s overall purpose, which may subject an HOA to liability. HOA Boards should discuss the matter amongst themselves and reach out to their general counsel should the need arise.

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

The Business Judgment Rule: Inapplicable as to Decisions Made Under a Material Conflict of Interest

Published on: January 6, 2021 | by Steven J. Tinnelly, Esq.

*New Case Law

Under the Business Judgment Rule, volunteer directors are shielded from liability for decisions made when those decisions are (1) consistent with the director’s duties, (2) made in good faith, and (3) in a manner it believes to be in the best interests of the HOA and its members. (See Lamden v. La Jolla Shores Clubdominium HOA (1999) 21 Cal.4th 249, 265; see also Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal. App. 4th 965, 979.) However, as clarified in the recent case of Coley v. Eskaton, the Business Judgment Rule does not uphold decisions made by directors “acting under a material conflict of interest.” ((2020) 51 Cal.App.5th 943 (“Coley”).)

In Coley, a homeowner Board member (“Owner Member”) brought legal action against the homeowners association (“Association”), two directors (collectively, “Directors”), and the Directors’ employer (Eskaton, Eskaton Village-Grass Valley, and Eskaton Properties, Inc.) (“Employer”) alleging, among other things, that the Directors “ran the [A]ssociation for the benefit of the Eskaton entities rather than the [A]ssociation and its members” in breach of their fiduciary duties. (Id. at p. *1.) In particular, the Directors were paid by Employer and “receive bonuses and incentive compensation in part based on the Eskaton Properties’ performance. Eskaton Properties’ performance, in turn, is based in part on Eskaton Village’s performance.” (Id. at p. *5.) Thus, the Directors were incentivized to ensure that the Eskaton Village performs well despite the impact said performance would have on other communities located within the Association development (i.e., the “Patio” homes).

In support of his allegations, Owner Member provided evidence that Directors improperly “voted to require the Patio homeowners to cover 83 percent of the cost associated with security services,” as well as imposed an assessment on the Patio homeowners to cover litigation expenses. (Id. at p. *7.) The result was a financial benefit to the Eskaton Village (and subsequently, the Directors). Additionally, one of the Directors improperly shared the Association’s attorney-client privileged information with Employer and Employer’s legal counsel. (Id.)

Employer and Directors objected to Owner Member’s argument that the foregoing actions constituted a breach of Director’s fiduciary duties to the Association and its members. In support of their objection, they argued that Owner Member failed to adequately demonstrate that Directors’ conduct “was motivated by specific self-interest,” that Directors “benefited from their breach of fiduciary duty,” and that Directors’ actions “amounted to mismanagement of the [Association].” (Id. at p. *51.) However, the Court of Appeals rejected Employer/Directors arguments concluding that “[o]nce [Owner Member] established the existence of a fiduciary relationship, breach of fiduciary duty, and damages, he was entitled to damages absent some applicable affirmative defense.” (Id. at p. *55.)

The Court noted that Owner Member satisfied this burden: (1) Directors, as members of the Board of Directors for the Association, owed fiduciary duties to the Association and its members; (2) Directors breached those duties by: (a) requiring Patio owners to pay a greater share of the security-services fees and legal fees” in violation of the CC&Rs, and (b) disclosing Association’s attorney-client privileged communications with Employer and Employer’s legal counsel; and (3) Owner Member (and other Patio owners) were injured as a result of the breach. (Id. at pp. **52-55.) And, as noted earlier, the Business Judgment Rule defense did not apply because Directors were acting under a material conflict of interest. As a result, liability was imposed against both Employer and against each Director personally.

This case is important because it highlights the fact that, while the Business Judgment Rule will ordinarily protect individual directors from liability for decisions made, it does not extend to decisions made while acting under a material conflict of interest. Directors therefore should refrain from participating in the decision-making process when a conflict of interest exists in order to avoid personal liability exposure.

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

California Legislature Further Limits a HOA’s Right to Restrict Rentals

Published on: September 28, 2020 | by Steven J. Tinnelly, Esq.

*New Legislation

On January 1, 2012, Section 1360.2 (now Section 4740) was added to the California Civil Code to limit a HOA’s authority to adopt and enforce certain rental “prohibitions.” The legislative intent behind the law was the recognition that “the rights of Owners in [a HOA] to rent or lease their properties, as the rights existed at the time the Owners acquired them, should be protected by the State of California…” Nevertheless, by its own terms, Section 4740 applies to rental prohibitions, not necessarily less serious restrictions that are reasonably related to the Association’s interests in maintaining and preserving the community. Thus, many HOAs adopted restrictions regulating the rental of separate interests within the development (e.g., one-year minimum term limit, owner-occupancy requirements, individual room rental restrictions, etc.).

On September 28, 2020, Governor Gavin Newsom signed Assembly Bill 3182 (“AB 3182”), which was introduced as another measure “to address the housing and homelessness crisis” in California. According to Assembly Member Phil Ting (the author of AB 3182), “[t]here are millions of homes across the state that have the potential to be rented to Californians in need of housing but that are prohibited from being leased under outdated [HOA] rules.” While the stated objective of providing more affordable housing units is a laudable goal, AB 3182 significantly limits the extent to which HOAs may impose rental restrictions and prohibitions.

Under AB 3182, California Civil Code section 4741 is added to the Davis-Stirling Common Interest Development Act and renders void and unenforceable any provision in a governing document or amendment thereto “that prohibits, has the effect of prohibiting, or unreasonably restricts the rental or leasing of” a separate interest “to a renter, lessee, or tenant.” Despite this prohibition, Section 4741 does authorize a HOA to adopt and enforce:

A rental cap of twenty-five percent (25%) of the separate interests (or greater); and
A provision “that prohibits transient or short-term rental of a separate…interest for a period of 30 days or less.”

Moreover, Section 4741 adds that a separate interest (including Accessory Dwelling Units and Junior Accessory Dwelling Units) is not considered “occupied by a renter” if the separate interest is also owner-occupied. Thus, for example, a cap on the number of rentals within a HOA would not apply to an owner renting out individual rooms within his or her separate interest.

Other than the rental restrictions specifically identified in Section 4741, there is much uncertainty as to the extent to which other common rental restrictions would be rendered unenforceable as a result of AB 3182. Indeed, the Legislature provides no guidance as to what would constitute an “unreasonable restriction” on the rental of a separate interest. Therefore, each rental restriction contained in a HOA’s governing documents must be evaluated in light of AB 3182’s intent: to increase the number of housing units made available.

There is much uncertainty that remains concerning the extent to which other typical rental restrictions remain valid and enforceable. To the extent certain rental restrictions are rendered unenforceable by AB 3182, same must be removed from the governing documents no later than December 31, 2021. Failure to comply with Section 4741 may result in a HOA being liable for actual damages (e.g., lost rental income) and a civil penalty of up to one thousand dollars ($1,000). It is therefore important for each HOA to consult with their attorney to determine whether the HOA’s rental restrictions are enforceable in light of AB 3182, and to take action to amend their governing documents to remove such unenforceable provisions.

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

Political Signs and the Limits Imposed on a HOA’s Ability to Regulate Same

Published on: September 23, 2020 | by Steven J. Tinnelly, Esq.

bigstock_Yard_Signs_At_Residential_Stre_229727968 As we draw near to the 2020 election, many residents living in HOAs have decided to install yard signs and other displays for their chosen candidate or cause. Many of these “noncommercial” signs have sparked fury in those who oppose such views, calling upon the Board of Directors to have such signs removed. Thus, in recent months, we have received numerous requests from our clients to provide an opinion as to the extent to which a HOA may regulate the display of such non-commercial signs.

It is without doubt that we currently live in a society with varying opinions on political and social issues. Such division has only become more polarized with recent events. While some might find the opinions espoused by certain groups repugnant, upholding a resident’s right to express those beliefs and opinions through the display of signs on their property is more important than the minor discomfort some may experience in observing such signs. The only other option would be to prohibit residents from displaying any signs concerning issues of politics and social justice, something which the California Legislature has expressly forbidden: “[H]omeowners throughout the state shall be able to engage in constitutionally protected free speech traditionally associated with private residential property” and “shall be specifically protected from unreasonable restrictions on this right in the governing documents.” (Historical and Statutory Notes, 8 West’s Ann. Civ. Code (2007 ed.) foll. 1353.6, p. 184.)

Indeed, under California Civil Code section 4710(a), “[t]he governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.” Some may nevertheless argue that certain noncommercial signs incite terror and/or rioting and therefore must be removed “for the protection of public health [and] safety.” Although such argument is speculative at best, Section 4710’s concern with public health and safety relates to concerns relative to the placement of such signs (e.g., view obstructions), not the fact that some might have an adverse emotional or physical reaction to such signs.

Inquiries have also been made concerning a HOA’s ability to restrict the number of noncommercial signs placed on a resident’s separate interest, as well as the duration of their display. Section 4710 does not address the number of noncommercial signs that may be displayed by a particular resident. However, in Fourth La Costa Condominium Owners Association v. Seith, the Court saw “no problem with allowing only one sign per unit,” and requiring that they be removed after a particular duration. ((2008) 159 Cal.App.4th 563, 581.) While Fourth La Costa pertained to real estate signs (i.e., commercial signs), the Court’s reasoning could similarly apply to restrictions on the number of noncommercial signs as well as the duration of display. (See id. at p. 581 (upholding the HOA’s decision “for aesthetic purposes”).) A HOA’s ability to regulate the number and duration would be further supported if the city/county in which the HOA is located has also promulgated codes/ordinances regulating the installation of political signs on a resident’s separate interest.

Again, it is important to recognize that many residents might find some of the political and social views promoted by their neighbors as offensive. Because they live in a HOA, they must necessarily tolerate differing viewpoints and loyalties. As the California Supreme Court has said, “[t]he very existence of organized society depends upon the principle of ‘give and take, live and let live’….” (San Diego Gas & Electric Co. v. Superior Court. (1996) 13 Cal.4th 893, 937-38.) Therefore, in response to resident complaints, such residents should be informed of the limitation imposed by Section 4710 and directed to “avoid further bombardment of their sensibilities simply by averting their eyes.” (Cohen v. California (1971) 403 U.S. 15, 21.)

Residents who object to the content displayed on noncommercial signs should be reminded that HOAs are limited in the ways in which they may restrict residents from displaying such signs on their separate interests. Nevertheless, HOAs should consult with their general counsel to ensure that the HOA’s operating rules are in compliance with California Civil Code section 4710.

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

Insurance Coverage Denied & Bad Faith Claims

Published on: September 16, 2020 | by Steven J. Tinnelly, Esq.

Medical-Necessity-Criteria-1080x675-1 Community associations buy insurance to obtain coverage in the case it becomes necessary. The reality is pre-litigation costs are expensive, ranging anywhere from a few thousand to tens of thousands of dollars. Litigation itself can be even more and this is not including any estimated fees for an appeal. No association wants to pay out of pocket for all these fees when there is a perfectly good insurance policy bought just for these types of situations. However, sometimes, an insurance company will want to cut corners to avoid paying out its policy coverage amount. If an association’s insurance carrier(s) denies coverage, your association’s legal counsel will work together with the insurance adjuster to persuade the insurance carrier to provide coverage, as a bad faith insurance claim would not be beneficial to either parties.

What is a bad faith insurance claim?

The law implies a covenant of good faith and fair dealing in every contract, including insurance policies. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal. 4th 713, 720). “[T]he essence of the implied covenant of good faith and fair dealing is that [t]he insurer must refrain from doing anything that will injure the right of the insured to receive the benefits of the [insurance] agreement, the terms and conditions of which define the duties and performance to which the insured is entitled.” (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1514- 1515.) Therefore, breach of a specific provision of the insurance contract is not a necessary prerequisite to bringing a bad faith claim. (Carson v. Mercury Ins. Co. (2012) 210 Cal.App.4th 409, 429.)

The implied covenant of good faith and fair dealing is breached where an insurer delays or denies payment of policy benefits unreasonably (i.e., without any reasonable basis for its position) or without proper cause. (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1072-1073; see Wilson, supra, 42 Cal. 4th 713, 723, —“[A]n insurer’s denial of or delay in paying benefits gives rise to tort damages only if the insured shows the denial or delay was unreasonable”; see also Chateau Chamberay Homeowners Ass’n v. Associated Int’l Ins. Co. (2001) 90 Cal.App.4th 335, 346.)

“[F]or a variety of [public] policy reasons, courts have held that breach of the implied covenant (in insurance cases) will provide the basis for an action in tort.” (Foley v. Interactive Data Corp (1988) 47 Cal. 3d 654, 684, 765 P.2d 373.) Insurance companies know that people buy insurance to obtain peace of mind and security, and that they expect to be paid promptly in the event of loss. (Egan v. Mut. of Omaha Ins. Co. (1979) 24 Cal. 3d 809, 819, 620 P.2d 141, 145.) Having sold insurance on this basis, insurers are not permitted to put their interest (in avoiding claims losses) ahead of the insureds’ interests in obtaining the protection for which they bargained. (Id. at p. 819.

If the association timely notifies the insurance carrier upon learning of a potential claim that may be covered by their insurance policy, insurance companies must cooperate in the investigation or settlement of the claim or defense against the lawsuit among other things.

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

Planning for the Unexpected: Force Majeure

Published on: August 26, 2020 | by Steven J. Tinnelly, Esq.

Expect-the-Unexpected If 2020 has taught us anything, it is to expect the unexpected. California community associations base their successful and continuing operations on careful planning and budgeting, but Associations must also plan for the unexpected. To that end, association vendor contracts should be drafted to ensure they afford adequate protections for when peril strikes.

Community associations regularly contract with vendors for a variety of services including landscaping and the maintenance and repair of common area components. Vendor contracts are often woefully sparse and fail to contain language to provide the parties with a mechanism to deal with unexpected disasters like war, fire, terrorist acts, or even pandemics like COVID-19.

Force majeure is a Latin phrase that means “superior force.” A force majeure contractual clause defines a set of events or circumstances beyond the contracting parties’ control that may excuse or delay parties’ contractual obligations for performance because performance would either be too difficult, impossible, or impracticable. Without it, the parties are bound to perform even in the face of a deadly viral pandemic which has resulted in shelter-in-place orders and business shutdowns across the state.

Citing Witkin Summary of Law, California courts have specifically held that “force majeure is the equivalent of the common law contract defense of impossibility and/or frustration of purpose: performance of a contract is excused when an (1) unforeseeable event, (2) outside of the parties’ control, (3) renders performance impossible or impractical.” Citizens of Humanity, LLC v. Caitac Int’l, Inc., No. B215233, 2010 WL 3007771 (Cal. Ct. App. Aug. 2, 2010). (emphasis added). In the realm of community association vendor contracts, COVID-19 has made the performance of certain contractual obligations impossible or impracticable. A large non-emergency construction project like a balcony repair which requires access by strangers to the inside of owners’ units comes to mind.

Very few vendor contracts which have not been prepared or negotiated by an attorney contain force majeure clauses. While it is always advisable for Associations to have vendor contracts reviewed by counsel, COVID-19 is an additional reason to seek the advice of counsel before signing a vendor contract. Given that a pandemic and shutdown of this magnitude is, forever more, a foreseeable event, its description should be included in all force majeure contractual provisions moving forward, so as to erase any doubt as to what events constitute the triggering of a force majeure event.

Not all force majeure clauses are created equal. Boilerplate language has been held insufficient in California and other states—a good example being Watson Labs, Inc. v. Rhone-Poulenc Rorer, Inc., 178 F.Supp.2d 1099, 1111 (C.D. Cal. 2001), where language referring to “regulatory, governmental … action” was found to be too vague and boilerplate to reflect that the parties considered that the shutdown of the Defendant’s plant would be encompassed.

Accordingly, an approach of over-inclusiveness should be adopted in drafting force majeure clauses. This ensures that not just a pandemic, but the effects of a pandemic, such as shelter-in-place orders, quarantines, government shutdowns, and other economic ripples caused by the response to an epidemic or pandemic be included in the definition of a force majeure event.

Associations should have all contracts reviewed by counsel and vendor contracts should contain a well-drafted force majeure clause to afford associations protection from liability in the event a pandemic or other force majeure event requires the delay or termination of a contract.

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

Your County is Off the COVID-19 Monitoring List…But Don’t Open the HOA Gym Just Yet!

Published on: August 19, 2020 | by Steven J. Tinnelly, Esq.

California homeowners associations started reopening community gyms when the State of California began easing restrictions imposed by the initial COVID-19 stay-home orders from March 2020 according to stages of a reopening roadmap. Thereafter, COVID-19 cases across the state began to spike, causing the state to issue renewed restrictions as set forth in the July 13, 2020 Statewide Public Health Officer Order (“Order”). These renewed restrictions forced HOAs in counties on the Monitoring List, including Orange, San Diego, Placer & Santa Cruz counties, to close previously-reopened gyms and fitness centers unless they could safely operate outdoors.

Due to reduced cases and otherwise meeting the requirements for slowing the spread of COVID-19, Orange, San Diego, Placer and Santa Cruz counties were recently removed from the state’s Monitoring List. However, the removal does not mean that community gyms and fitness centers may reopen at this time. This is because Section 3 of the Order provides that counties placed on the Monitoring List must close indoor gym and fitness center operations, but does not provide for the reopening of those indoor operations once a county is removed from the Monitoring List. For that to happen, the state must modify the Order and authorize the re-opening of indoor fitness facilities. Applicable county orders must also be similarly updated.

For now, the state’s COVID-19 website clearly states, “[c]ounties on, or recently removed from, the County Monitoring List must close indoor operations for the following business sectors, events, and activities . . . Gyms and fitness centers . . .” This means that outdoor fitness facilities are the only option for HOAs in counties on or recently removed from the Monitoring List. However, caution should be exercised (no pun intended) before moving community gyms outside as the equipment could easily be stolen, damaged due to exposure from the elements, cause costly damage to the HOA common area while being moved, or injure workers or volunteers whom are not otherwise qualified to move heavy equipment. Moreover, gym equipment left outside and unattended could increase the HOA’s liability exposure due to, for example, those improperly using it for play or climbing.

While this state of events may be disappointing for homeowners, continued reduction of COVID-19 cases across the state should encourage state officials to reopen indoor fitness facilities when reopening can be accomplished safely. Homeowners associations are encouraged to consult with their legal counsel before reopening their fitness facilities to ensure compliance with all applicable laws.

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

Why Should My Attorney Review Contracts?

Published on: August 5, 2020 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Our HOA community manager always recommends that our vendor contracts be reviewed by our HOA attorneys before we sign them. Is this really necessary?

Answered – Yes! Contract review is an integral step to protect the HOA against future contract disputes. Oftentimes, HOA Boards of Directors don’t think twice about a contract until there is a dispute with the other party later on. By this point, it’s too late to negotiate contract terms, and the Board is often left to interpret and navigate poorly written and single-sided provisions that do not provide any support or protection to the HOA.

Contract disputes can be extremely costly and time-consuming. Since contract disputes and related expenses are unpredictable, they aren’t necessarily incorporated into the HOA’s annual budget; this can put a lot of financial strain on the HOA and could lead to special assessments on the membership to cover the costs. Furthermore, contract disputes can leave the HOA tied up with a vendor in which they’d rather part ways. This could leave the HOA without the ability to hire a new, better-qualified vendor to perform the job at hand.

Our HOA attorneys are skilled in the review, revision, and negotiation of contracts specific to HOA needs. Our attorneys can spot concerns that may not be obvious to a Board member, recommend alternative or additional language to provide HOA specific protections, and also communicate these concerns directly with the vendor. Additionally, our attorneys can identify whether the Board may be prohibited from entering the contract pursuant to the HOA’s governing documents. Combined, these efforts will result in a more comprehensive contract and more balanced protections for the HOA.

By taking the time up front to work with our expert attorneys, Board members can be assured that they are prudently adhering to their fiduciary duties and feel confident that they have taken appropriate measures to mitigate costly and time-consuming contract disputes in the future.

-Blog post authored by TLG Attorney, Joelle M. Bartkins, Esq.

HOA Restrictions on Emotional Support Dogs in the Pool Area

Published on: July 15, 2020 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Our Association does not allow pets in the pool area, but a resident has recently begun bringing her emotional support dog to the pool-side lounge area. Do we have to let the dog accompany its owner to the pool?

Answered – Probably. The Federal Fair Housing Act requires housing providers to make reasonable accommodations that may be necessary to allow persons with disabilities to enjoy their housing, including common area spaces. An accommodation is typically considered reasonable if it does not impose an undue financial and administrative burden on the housing provider or fundamentally alter the nature of the provider’s operation. Normally, allowing an emotional support dog to use a common area that is otherwise off limits to pets will not create such a burden on the homeowners association (“HOA”).

In this case, since the HOA’s restriction on pets from the pool area may be serving as a barrier to prevent this resident from using the pool area, making an exception to this rule and allowing her to bring her emotional support dog to the pool deck is likely a reasonable accommodation that the HOA can make.

However, like other dogs within the Association, an emotional support dog must remain under the control of its owner. This means the HOA can require that the dog remain on a leash while it is poolside with its owner unless a specific accommodation to allow the dog off-leash is requested by the dog’s owner and granted by the HOA – there are very limited circumstances when a dog does not have to be leashed or crated. Furthermore, if the dog causes a nuisance (for example, uncontrolled barking) or poses a threat of harm to another person or the property of another person, the HOA can restrict the dog’s presence in order to eliminate the nuisance or threat to other residents of the HOA.

It is worth noting, however, that just because the emotional support dog is allowed in the pool area does not mean the dog may enter the pool. Public health regulations prohibit dogs in swimming pools, and the HOA may not ignore this regulation to allow the dog inside the pool with its owner. If the owner is in the pool, the dog must continue to remain under control, whether the dog’s leash is held by another person capable of controlling the dog or tethered to a stable element.

When an HOA receives a request from a resident for an accommodation based on the resident’s disability, the Board should address the request timely and maintain an open dialogue with the resident. The Board should be careful to address these requests in compliance with all applicable laws and should not ask about the nature or extent of the person’s disability. Oftentimes in a request regarding an emotional support animal, the person’s disability and the animal’s related service task is not readily apparent (as may be the case for a dog that helps guide an individual in a wheelchair). HOA’s should consult their legal counsel regarding requests for accommodation of disabled residents.

-Blog post authored by TLG Attorney, Joelle M. Bartkins, Esq.

Protecting HOA Members’ Contact Information

Published on: June 19, 2020 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Our HOA Board of Directors just learned that any member may request a copy of our HOA’s membership list and have access to other members’ personal contact information. Is there anything we can do to protect the privacy of our members who may not want their personal information shared with others in our community?

Answered – Yes. California law does allow any member of your HOA to inspect and copy specified “association records,” which include your HOA’s membership list. The membership list contains member names, property addresses, and mailing addresses. Moreover, due to recently enacted legislation, the membership list now includes member email addresses as well. (Civ. Code section 5200(a)(9).)

This raises several privacy concerns. Members making a request for the membership list could ultimately give or sell the list of addresses to soliciting vendors, or use the contact information contained in the membership list for other improper purposes. To prevent this result, our HOA lawyers encourage our clients to become familiar with Civil Code section 5220. This provision allows a HOA member to submit a written request to be removed from (to “opt-out” of) the membership list in order to prevent the disclosure of their private contact information to other members. This opt-out remains in effect until changed/revoked by the member.

We recommend that HOAs adopt privacy policies and opt-out forms to help protect their members’ private contact information.
**An example HOA privacy policy and opt-out form is available for download on our website at: tinnellylaw.com/opt-out.pdf.