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hoa-water-usageIn April of last year Governor Brown ordered mandatory water use reductions for the first time in California’s history in order to address the prolonged California drought crisis. That order directed the State Water Resources Control Board (SWRCB) to impose a twenty-five percent (25%) reduction on the state’s 400+ local water supply agencies. Complying with these mandated reductions caused communities throughout the state to immediately and drastically address their water usage and conservation practices, and to incur significant expense in doing so. This order was issued amidst a string of legislative and regulatory changes aimed at addressing the historic drought. For example, legislation was enacted to prohibit homeowners associations (HOAs) from fining homeowners for failing to water their lawns during the drought, and the SWRCB adopted emergency regulations that subject HOAs to fines of $500 per day for failing to comply with the SWRCB’s restrictions on potable water use.

In an apparent policy reversal, yesterday the Governor lifted the 25% mandated statewide water reduction. The Governor’s new executive order directs the SWRCB and the Department of Water Resources (DWR) to work with water suppliers to develop rules and water use targets that are tailored to the unique conditions of their respective regions.

Under the new rules, which take effect on June 1, communities would set water reduction guidelines based on their own projection of water supplies with the assumption that the next three (3) years in California will be uncommonly dry. The state would then review the projections and impose restrictions on communities it determines are being unrealistic. These rules and restrictions are consistent with legislation proposed earlier this year (SB 814) that, if adopted in its current form, would require water suppliers to establish their own methods to identify and restrict excessive water use.

California HOA laws These rules may lead to a significant reduction, or even an elimination, of water reduction mandates that have compelled HOAs to drastically alter their water usage and watering practices at substantial costs to the HOAs and their membership. The $500 daily fine to which HOAs are subject remains in effect; however, allowing for water reduction mandates to now be established at local levels will hopefully result in more sensible water reduction targets.

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hoa vendorsOne of the primary purposes of any homeowners association (HOA) is to manage, maintain and repair the common areas throughout the HOA’s development. This naturally requires the HOA to contract with third-party vendors to furnish goods or services to the HOA (e.g., landscaping, construction, remediation, painting, plumbing, etc.). We are consistently surprised at how some Board members and management professionals fail to recognize how the HOA’s use of improperly vetted vendors can result in potentially significant legal and financial implications for the HOA, among other problems. Therefore, the need to properly vet vendors—and their contracts—is critical before the Board executes any vendor’s contract on behalf of the HOA.

We previously drafted a library article entitled “HOA Concerns in Contracting with Vendors” that provides some guidance as to how a HOA’s Board and Managing Agent can protect the interests of the HOA and its members. This blog post touches on some of the information contained in that article, and sets forth some recommended procedures which should be utilized before any vendor begins work at the HOA’s development.

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hoa-mold-growth*New Legislation

Existing law requires a landlord to repair certain “dilapidations” that render a unit untenantable. SB 655 (Mitchell) was proposed earlier this year in order to specify a landlord’s responsibilities in connection with repairs to a building that are necessitated by the presence of mold. SB 655 was approved on October 9, 2015 and its changes to the law will become effective January 1, 2016.

As a result of SB 655’s passage, new Section 1941.7 will be added to the Civil Code in order to alleviate a landlord’s responsibility to repair mold damage until the landlord receives notice or if the tenant is in violation of his/her obligations specified under Civil Code Section 1941.2. What’s more significant is how SB 655 will also amend Sections 17920 and 17920.3 of the Health & Safety Code to include “visible mold growth” as a substandard building condition that could subject a landlord to criminal penalties (misdemeanor), with a limited exception provided for mold that “is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use.”

SB 655 speaks to landlords (a “lessor of a building”), and not necessarily homeowners associations (“HOAs”). However, courts have applied landlord/tenant law to HOAs in certain circumstances, such as those involving issues of life safety. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490.) Thus, there is a concern circulating throughout the HOA industry that a condominium HOA (i.e., its Board or management) could now face criminal liability for its unreasonable failure to address reports of mold and to take appropriate corrective measures.

hoa law firm We do not believe that SB 655 will ultimately subject HOA Boards or management professionals to criminal liability. However, SB 655 does underscore how important it is for a HOA to immediately address reports of mold and to take appropriate action. A HOA Board should consider working with the HOA’s attorney to adopt a formal water intrusion/mold policy. That policy would help educate members on their obligations to immediately notify the HOA and its management of the presence of mold within their Units, and would also specify the HOA’s policy in responding to reports of mold.

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hoa-recycled-water*New Legislation

We have blogged about legislation enacted in 2014 that made several changes to Civil Code Section 4735 in response to California’s continuing, record-breaking drought. One of those changes served to prohibit HOAs from fining homeowners for failing to adequately water vegetation or lawns during government-declared drought periods. Earlier this year, AB 349 was signed into law to make further changes to Section 4735. One of those changes served to restore a HOA’s authority to fine homeowners for failing to water, provided that the HOA “uses recycled water…for landscaping irrigation.” (Former Civ. Code § 4735(c).)

Questions then arose as to the circumstances which would allow for a HOA to qualify for this exception and thus be permitted to fine homeowners for failing to water. For example, would a HOA have to use recycled water for all of its landscaping irrigation, or just a portion of its landscaping irrigation? To remedy this ambiguity, AB 786 was proposed this year as an urgency statute based upon the following findings by the California Legislature:

“…some homeowners associations have interpreted existing law to allow them to fine homeowners who voluntarily cease using potable water on their landscaping if the homeowners association itself is using a de minimis amount of recycled water on common areas. This is directly contrary to the state’s need to conserve the precious and dwindling water supplied for urban, agricultural, and environmental needs.”

AB 786 therefore sought to make additional amendments to Section 4735 to clarify that a HOA’s authority to fine homeowners for failing to water during drought periods extends only to situations where the homeowner’s property subject to the fine has previously received, and continues to receive, recycled water for landscaping irrigation. Thus, the Legislature illustrated its original intent to shield only those homeowners who voluntarily cease using potable water for their landscaping irrigation from being fined by their HOAs; homeowners with access to recycled water would still be subject to fines if they failed to use that recycled water for their landscaping irrigation.

AB 786 was signed into law on October 13, 2015 and its changes took immediate effect. Subdivisions (c) and (d) of Section 4735 now state in pertinent parts that:

“(c) Notwithstanding any other provision of this part, except as provided in subdivision (d), an association shall not impose a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during [government-declared drought periods]…”

“(d) Subdivision (c) shall not apply to an owner of a separate interest that, prior to the imposition of a fine or assessment as described in subdivision (c), receives recycled water…and fails to use that recycled water for landscaping irrigation.” (Emphasis added.)

hoa laws AB 786 fortunately resolves yet another ambiguity that was created by rushed legislation. HOA Boards and management professionals whom are opposed to having a sea of “brown lawns” within their communities should consult with their HOA’s legal counsel for guidance.

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hoa-artificial-grass-turfNew Legislation*

In recent years the California legislature has proposed bills that would require homeowners associations (HOAs) to permit the installation of artificial turf (grass) in their communities. Those bills never made it into law, and were vetoed by the California Governor due to the Governor’s belief that “[t]he decision about choosing synthetic turf instead of natural vegetation should be left to individual homeowners associations, not mandated by state law.”

AB 349, proposed earlier this year, marked the latest attempt by the California Legislature to restrict the authority of HOAs to prohibit artificial turf. AB 349 was proposed as an urgency statute based upon the following rationale of the California Legislature:

“While in the middle of a water shortage crisis, homeowner associations are not allowing homeowners to make voluntary sacrifices and are still forcing them to maintain grass lawns, by installing artificial grass, and are fining them if they are out of compliance. [AB 349] ensures that all homeowners have the right to better conserve water by voluntarily replacing grass with artificial grass. Property owners who pursue water conservation by installing artificial grass should be encouraged, not sued or fined. Thus, this act is necessary for the immediate preservation of the public peace, health, and safety.”

The prolonged California drought has apparently lead to a reversal in the Governor’s position on this issue and AB 349 was signed into law on September 4, 2015. As a result, Civil Code Section 4735 has been amended to render void and unenforceable any provision of a HOA’s governing documents (i.e., a HOA’s architectural standards) that “prohibits, or includes conditions that have the effect of prohibiting, the use of artificial turf or any other synthetic surface that resembles grass.” (Civ. Code § 4735(a)(2).)

This language was modeled after similar protections already existing in Section 4735 for homeowners seeking to use “low-water using plants.” An additional amendment to Section 4735 as a result of AB 349’s passage includes the incorporation of new subpart (d) that protects homeowners from having to “reverse or remove” water-efficient landscaping measures that were installed in response to a government-declared drought period once the drought period concludes.

hoa laws AB 349’s changes to the law take effect immediately as an urgency statute. HOA boards, architectural committees and management professionals must take note of the changes to Civil Code Section 4735. While AB 349 does not address what types of restrictions (as opposed to flat prohibitions) a HOA may place on the installation of artificial turf, HOAs should endeavor to amend their architectural standards in order to provide some guidance to homeowners on this issue and to deter the use of low quality turf materials.

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hoa-pool-water-testingThe requirements for operating and maintaining “public pools” have been subject to various regulatory changes in recent years. Those changes have impacted pools within private homeowners associations (HOAs), as the California Legislature and Department of Health have defined the term “public pools” to include pools located within private HOAs and residential developments. (Health & Safety Code §§ 116049.1(a), 116064.2(a)(4)(B); 22 CCR § 65503(a)(9).) The more notable changes include those which mandate (1) new parameters for water characteristics, (2) strict monitoring of pool facilities and requirements for written records, (3) enforcement of specific safety and first aid equipment, (4) requirements that newly constructed public pool enclosures have at least one keyless exit and self closing latches, and (5) the imposition of health restrictions for employees or pool users. Some of these changes are discussed below.

Daily Testing
The most significant change is that which requires HOAs with twenty-five (25) or more separate interests to test pool and spa water chemical composition and temperature on a daily basis, and to keep a daily log of the testing. (22 CCR § 65523(a).) Daily testing may be performed “using a properly calibrated automatic chemical monitoring and control system” if allowed by local enforcing authorities. (22 CCR § 65523(a).) For HOAs with fewer than 25 separate interests, testing must be performed and documented “at least two times per week and at intervals no greater than four days apart.” (Health & Safety Code § 116048(a).)

Safety Equipment
Other notable changes deal with the installation/maintenance of safety and first aid equipment. For example, that equipment must include a 12’ minimum length rescue pole and a 17” minimum (exterior diameter) life ring with an attached throw rope having a minimum of 3/16” diameter. (22 CCR § 65540(a).)

Health Restrictions
Previous regulations prohibited persons with diarrhea from using the pool. Now, pool access must be denied to any person, including pool monitors, that have symptoms “such as a cough, cold sore, or nasal or ear discharge or when wearing bandages.” (22 CCR § 65541(b).)

Pool Enclosures; Gates & Doors
Finally, there are specific requirements in Section 3119B of the California Building Code for at least one gate/door into the pool enclosure to allow for egress, without a key, for emergency purposes. If all gates/doors allow for keyless exit, no special signage is necessary, otherwise the keyless exit(s) must have signage stating “EMERGENCY EXIT” in at least 4” high lettering.

hoa laws The requirements and technicalities governing pool use and maintenance are numerous and complex. Now, more than ever, HOAs should ensure that their pool maintenance vendors are aware of these requirements and understand the need for strict compliance.

 

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hoa-irrigation-sprinkler.jpg*New Regulations

The prolonged period of drought in California has resulted in numerous regulatory and legislative changes aimed at addressing the water shortage (i.e., legislation regarding low-water using plants and watering during droughts). On March 17, 2015, the State Water Resources Control Board adopted an expanded emergency regulation to safeguard California’s remaining water supplies.

Under the expanded emergency regulation, additional prohibitions on potable water use have gone into immediate effect. All Californians are now prohibited from using potable water to:

  • Wash down sidewalks and driveways;
  • Water outdoor landscapes in a manner that causes excessive runoff
  • Washing a motor vehicle with a hose, unless the hose is fitted with a shut-off nozzle:
  • Operating a fountain or decorative water feature, unless the water is part of a recirculating system; and
  • Irrigating turf or ornamental landscapes during and 48 hours following measurable precipitation (*New)

The newly adopted prohibition on irrigating turf/landscapes during and 48 hours following precipitation (rain) may impact the common area maintenance/irrigation practices of HOAs. Failure to comply with that provision could subject a HOA to a fine of $500 per day.

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To read more about the emergency regulation, click here.

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hoa-garden-rats.jpg*Asked & Answered

Asked – Fallen and decayed vegetables from a homeowner’s garden are attracting numerous rats and other pests. With the new law permitting personal food gardens, is there anything our HOA can do to address this issue?

Answered – Probably. AB 2561, effective January 1, 2015, added Section 1940.10 and 4750 to the Civil Code. In sum, Section 4750 grants homeowners within HOAs the right to use their backyards for “personal agriculture,” regardless of any provisions contained in a HOA’s governing documents to the contrary. However, that right is not absolute. HOAs still have some authority to restrict and regulate personal food gardens in the following respects:

  • Personal Use/Donation Only – The crops must be grown for personal use or donation. Crops grown for sale or other commercial purposes do not fall within the definition of “personal agriculture” for the purposes of Section 4750.
  • No Marijuana or Unlawful Substances – There is no right for a homeowner to grow “marijuana or any unlawful crops or substances,” as those items do not constitute a “plant crop” permitted by Section 4750.
  • Only on Owner Property or Exclusive Use Common Area – The right to keep and maintain personal food gardens extends only to the owner’s backyard or areas designated for the exclusive use of the homeowner (i.e., exclusive use common area patios), not general HOA common areas.
  • Reasonable Restrictions Permitted – The HOA may still impose “reasonable restrictions” on the use/maintenance of homeowner’s yard for personal agriculture. “Reasonable restrictions” are those that “do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.”
  • Clearance of Dead Plant Materials and Weeds – Section 4750 still allows for HOAs to apply rules and regulations requiring that “dead plant material and weeds, with the exception of straw, mulch, compost and other organic materials” that encourage vegetation and soil moisture retention, be regularly cleared from the backyard. A rule or regulation requiring such clearance may be successful in resolving your rodent and pest problem.

As indicated above, the right to have a personal food garden would not necessarily insulate a homeowner from his obligation to comply with related provisions of a HOA’s governing documents that serve as “reasonable restrictions” on the use of a yard for personal agriculture. For example, virtually every set of CC&Rs contains a provision prohibiting homeowner from conducting any activity on their property that poses a nuisance to neighboring homeowners. If the way in which a homeowner’s food garden is being maintained is resulting in a nuisance (i.e., attracting rats and other pest populations), the nuisance provision would likely constitute a “reasonable restriction” that the HOA may enforce against the homeowner.

hoa laws

In addition to the issues noted above, HOAs may, in some instances, have the authority to restrict food gardens that violate other provisions of the Association’s governing documents that serve as “reasonable restrictions” allowable under Section 4750 (i.e., a height limitation within the HOA’s landscaping standards may serve to prohibit crops that grow to unreasonable heights). HOA Boards that are encountering problems with food gardens should consult with their legal counsel for guidance as to how their governing documents may be tailored to address these types of issues.

To submit questions to the HOA attorneys at Tinnelly Law Group, click here.

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HOA-water-intrusion-patio.jpgMost every set of Homeowners Association (“HOA”) CC&Rs contain a provision prohibiting conduct which constitutes a “nuisance.” That conduct often includes “noxious, illegal or offensive activities,” anything which “unreasonably interferes with a resident’s right to quiet enjoyment” and/or “endangers their health or annoys or disturbs” them. We have blogged about how such nuisance provisions may be employed to resolve issues such as the conduct of tenants, activities in the common area, and second-hand smoke transmission. However, a recent unpublished ruling of a California appeals court indicates how nuisance provisions may also extend to situations involving improvements constructed or maintained by a homeowner.

In PGA West Residential Association, Inc. et al., v. Mork (2014) Cal. Ct. App. No. E054276 (“PGA West“), the Defendant homeowners (the Morks) and the Plaintiff homeowners (the Wyatts) owned adjacent, freestanding condominium units within the PGA West Residential Association (“Association”). In 2008, the Wyatts discovered the presence of mold and moisture damage within the interior of their unit. The Wyatts concluded that the water had entered into their unit through an exterior common area wall (“Common Wall”) separating their unit and the Morks’ patio (“Patio”). The Wyatts then sued both the Morks and the Association for violating the restrictive covenants set forth in the Association’s CC&Rs. The Association also sued the Morks for breach of the CC&Rs, breach of contract, and negligence–alleging that the Morks had altered the drainage in the Patio and, as a result, caused water to flow under the Common Wall and into the Wyatts’ unit.

At trial, both the Wyatts and the Association presented evidence that the Morks had altered the original grade of the Patio in the Morks’ course of constructing a swimming pool, sprinkler system and other improvements in the Patio area. The Morks’ conduct resulted in surface water which drained away from the Morks’ unit ultimately collecting into a 2′ wide planter (“Planter”) that extended the length of the Common Wall. In their defense, the Morks argued, among other things, that they were not responsible under the CC&Rs for maintaining the Patio or the Planter–that those areas were designated as “Limited Common Areas” under the CC&Rs to be maintained by the Association…

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hoa-balcony-repairs.jpg*New Legislation

A common legal issue affecting Homeowners Associations (“HOAs”) deals with determining the extent of the HOA’s maintenance and repair responsibilities versus those of its homeowners. Most sets of HOA CC&Rs address the maintenance and repair responsibilities for HOA common areas, the individual units/lots (“separate interests”) owned by the homeowners, and any common areas reserved for a particular homeowner’s exclusive use (“exclusive use common areas”). In the event that the CC&Rs are inadequate or ambiguous in this respect, Civil Code Section 4775(a) sets forth the following default structure:

Unless otherwise provided in the CC&Rs:
(1) the HOA is responsible for “repairing, replacing, or maintaining the common area, other than exclusive use common area”; and
(2) the homeowner is responsible for “maintaining [the homeowner’s] separate interest and any exclusive use common area appurtenant to the separate interest.”

However, there is an ambiguity within this language with regard to exclusive use common area. While “maintaining” exclusive use common area is the homeowner’s responsibility, Section 4775 fails to state who exactly is responsible for “repairing” or “replacing” the exclusive use common area. This ambiguity is often problematic for condominium developments that may have numerous exclusive use common areas, such as exterior windows, reserved parking spaces, patios, balconies, etc.

Industry practice has held that the homeowner is only responsible for the basic upkeep/maintenance of the exclusive use common area’s usable surfaces, while the HOA would be responsible for any major or structural repairs to the exclusive use common area. We previously blogged about this issue in response to a question on balcony repairs within a condominium development.

Fortunately, the passage of AB 968 (Gordon) will serve to codify industry practice. Effective January 1, 2017, Section 4775 will be amended to read, in part, that:

“Unless otherwise provided in the [CC&Rs] of a common interest development, the owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest and the association is responsible for repairing and replacing the exclusive use common area.”

hoa laws

HOA Boards and management professionals must still be aware of the fact that Section 4775’s default structure does not supersede any conflicting provisions in the CC&Rs. Moreover, even when an exclusive use common area is to be repaired or replaced by the HOA, there may be instances where a homeowner should be held responsible for the repair or replacement costs. For example, if damage to common area or exclusive use common area is sustained as a result of the acts of a homeowner, his guests or tenants, most CC&Rs contain provisions allowing (and even requiring) the HOA to levy what is commonly known as a “reimbursement” special assessment against the homeowner to recover the HOA’s repair costs. The authority for a HOA to take such action is also supported by Civil Code Section 5725(a).