Maintenance

Personal Food Gardens Becoming a Nuisance?

Published on: February 5, 2015 | by Steven J. Tinnelly, Esq.

*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.

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.

Owner Held Liable for Property Damage on ‘Nuisance’ Grounds

Published on: November 20, 2014 | by Steven J. Tinnelly, Esq.

Most 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…

AB 968 Signed: Clarifying Repair/Replacement of Exclusive Use Common Area

Published on: November 7, 2014 | by Steven J. Tinnelly, Esq.

*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 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).

AB2104 Signed: Low-Water Using Plants; Watering During Droughts

Published on: September 30, 2014 | by Steven J. Tinnelly, Esq.

*New Legislation

We have previously blogged about several bills being considered by the California Legislature relating to drought relief. Among them was AB2104 (Gonzales), which has now been signed by Governor Brown and will take effect January 1, 2015. In sum, AB2104 will expand upon the limitations placed upon Homeowners Associations (“HOAs”) in their efforts to regulate “low water-using plants,” as well as incorporate an Executive Order signed by Governor Brown in April of 2014 that prohibits HOAs from fining homeowners for reducing/eliminating the watering of lawns during declared drought periods.

Section 4735 of the California Civil Code previously stated that any provision of a HOA’s governing documents is void and unenforceable to the extent that it “prohibits, or includes conditions that have the effect of prohibiting, the use of law-water using plants as a group.” AB2104 will expand on this language by also voiding any governing document provision (including those contained in a HOA’s architectural or landscaping guidelines) that “prohibits, or includes conditions that have the effect of prohibiting, the use of low-water using plants as a group or as a replacement for existing turf.” (Emphasis added.) Additionally, the inability for HOAs to fine homeowners for failing to adequately water vegetation or lawns during state or local government-declared drought periods will be codified under new subpart (c) to Section 4735.

To read the chaptered text of AB2104 and the portions of Section 4735 which will be amended, click here.

In the wake of AB2104, questions have surfaced regarding the extent to which HOA’s may still restrict or prohibit the installation of artificial turf. We have previously blogged about this issue, and how artificial turf likely does not constitute a “plant” within the meaning of Section 4735. Additionally, bills which have been proposed by the California Legislature in the past to require HOAs to permit the installation of artificial turf have been vetoed by California governors and ultimately never made it into law. It is unlikely that AB2104 addresses this issue or will otherwise limit the authority of HOAs to regulate or restrict the installation of artificial turf within their communities.

HOAs Prohibited from Fining Homeowners for Failure to Water

Published on: June 19, 2014 | by Steven J. Tinnelly, Esq.

In its third consecutive year of severe drought, California faces a historic water shortage and wildfire danger. According to Mashable.com and US Drought Monitor, “The entire state is in some stage of drought, with 77% of the state suffering from ‘extreme’ to ‘exceptional’ drought conditions.” Matters are expected to worsen, as California continues to experience its hottest year on record.

In response to these conditions, Governor Brown signed an Emergency Drought Proclamation in January 2014 declaring a state of emergency and calling upon all Californians to voluntarily reduce their water usage by 20 percent. As residents of homeowners associations (“HOAs”) began responding to the Governor’s plea by reducing their irrigation, HOAs fined their members for failure to maintain their yards in accordance with the governing documents. This led to swift action by both the Governor and the California Legislature.

In April, Governor Brown signed an Executive Order which effectively prohibits HOAs from fining, or threatening to fine, homeowners “who comply with water conservation measures.” The Order further provides that “any provision of the governing document, architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water-saving measures contained in this directive.” One of these water-saving measures is to limit outdoor watering to no more than twice per week.

The California Legislature is also considering three bills related to drought relief, which would impact HOAs. AB 2100 (Campos) and SB 992 (Nielsen) would prohibit HOAs from imposing a fine or assessment against a member for reducing or eliminating water of vegetation or lawns during a Governor-declared state of emergency, or a local government-declared emergency, due to drought. If passed, these bills would take effect immediately as urgency statutes. AB 2104 (Gonzalez) would provide that a provision of the governing documents, including the architectural or landscape guidelines, is void and unenforceable if it would have the effect of prohibiting low water-using plants as a group, or as a replacement of existing turf, or if it has the effect of restricting compliance with water conservation measures. The California Legislative Action Committee (“CAI-CLAC”) continues to seek amendments to these bills as they work their way through the legislature.

It is important to note that both the Proclamation and the pending legislation are limited to periods of a Governor-declared drought. HOAs are still permitted to enforce other landscape maintenance issues, such as weeds, brush, tree trimming, etc. In addition, HOAs may continue to enforce irrigation provisions, provided they are within the parameters outlined in the Order or as set forth by the local water agency. HOAs considering changes to their architectural or landscape guidelines should seek the advice of their legal counsel.

Blog post authored by Tinnelly Law Group’s Director of Business Development, Ramona Acosta.

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

HOA Compliance with California Pesticide Regulations

Published on: January 27, 2014 | by Steven J. Tinnelly, Esq.

*New Library Article

California Code of Regulations (CCR) Sections 6000 through 6619 regulate the use of pesticides and pest control operations. Much of these Sections do not apply to residential homeowners associations (“HOAs”). However, there is one Section that contains various notification requirements that a HOA must satisfy when pesticides are applied in its community: CCR Section 6618 – “Notice of Applications.”

In sum, CCR Section 6618 requires certain notifications to be provided to the “operator” of the property where pesticides are being applied, as well as to persons whom the operator has reason to believe may enter the property during and after the application period. Unfortunately, CCR Section 6618 is vague and somewhat confusing to interpret, especially due to its references to “fieldworkers,” “agricultural plant commodities,” and “commercial and research production.” As a result, a number of our HOA clients have requested guidance on the extent to which they must comply with CCR Section 6618, as well as the steps needed to do so.

This blog post addresses this issue and provides some generalized recommendations for HOAs and their management. It also includes information we obtained from state and local entities that enforce these regulations: the California Department of Pesticide Regulation (“DPR”) and the Orange County Agricultural Commissioner’s Office (“OCAC”). As discussed below, HOA vendors that perform pest control services have a major role in providing HOAs with the pesticide label and application information that must be disclosed to the HOA’s members pursuant to CCR Section 6618…

Our attorneys have also published this information in an article that is available for download from our Web site’s library.

HOA Managers Not ‘Contractors,’ But Beware…

Published on: October 1, 2013 | by Steven J. Tinnelly, Esq.

*New Legislation

We have previously blogged about the introduction of SB 822 by the California Legislature earlier this year. SB 822, in part, clarifies recent amendments to the California Business and Professions Code relating to “contractors” whom are required to be licensed by the state. The clarifying language was introduced in the wake of the confusion and concern that had surfaced regarding whether community association (“HOA”) managers were required to hold a contractor’s license in order to perform common tasks such as obtaining bids and overseeing the progress of ongoing construction work.

Thanks to the efforts of CAI’s California Legislative Action Committee (“CLAC”), SB 822 was recently signed into law by Governor Brown and will take effect January 1, 2014. SB 822 adds the following provision to Section 7026.1(b) of the Cal. Bus. & Prof. Code:

“The term “contractor” or “consultant” does not include a common interest development manager, as defined in Section 11501, and a common interest development manager is not required to have a contractor’s license when performing management services, as defined in subdivision (d) of Section 11500.”

However, this does not mean that HOA managers should interpret this language as a “green light” to act as de facto construction managers. Doing so could expose the HOA, the manager and the management company to liability in the event a construction project goes south. How then can a HOA manager and Board avoid this problem without having to hire an independent construction manager for every project?…

Swimming Pools: Required Safety Signs

Published on: June 25, 2013 | by Steven J. Tinnelly, Esq.

pool signs hoa attorny california.png *Asked & Answered

Asked – Is there a new sign requirement for pools located in homeowners associations?

Answered – Yes. Title 24 of the California Building Code was updated to require new safety signs for public swimming pools. (Association pools are considered public pools.) Two new signs are required for all pools:

A sign shall be posted on the exterior side of all gates and doors leading into the pool enclosure stating, “KEEP CLOSED.”
A sign in letters at least 1 inch high and in a language or diagram that is clearly stated shall be posted at the entrance of the pool area which states that persons having currently active diarrhea, or who have had active diarrhea within the previous 14 days shall not be allowed to enter the pools water.

A third new sign must be posted at pool areas that have spray ground (interactive fountains) that children run through, and made visible from any part of the spray ground that states, “CAUTION: WATER IS RECIRCULATED. DO NOT DRINK.”

The signs are required immediately on all new pool construction; however, on existing pools it will be up to the Environmental Health Services personnel that inspect the association’s pool to provide the deadline for positing the new signs. It would be prudent to have the signs posted as soon as possible.

Content provided by TLG attorney Terri Morris

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

SB 822 to Clarify Contractor Licensing Reqs. for HOA Managers

Published on: June 20, 2013 | by Steven J. Tinnelly, Esq.

hoa contractor.jpg We recently blogged about some concerns which have surfaced in the HOA industry regarding the impact of new contractor licensing requirements. AB 2237 was passed in 2012 by the California Legislature to expand on the definition of the “contractors” who must be licensed by the state. That expanded definition includes language which could be read to require common interest development (“CID” aka “HOA”) managers to have a contractor’s license in order to perform common tasks such as obtaining bids and overseeing the progress of ongoing construction work.

Our blog post addressed how a careful reading of the statutes along with the legislative intent behind AB 2237 reveal that HOA managers are not intended to be “contractors” that are required to hold a license. Fortunately, SB 822, introduced earlier this year, now includes a clarifying amendment to specifically exclude HOA managers from the definition of a contractor:

“This bill would provide that the term ‘contractor’ or ‘consultant’ does not apply to a common interest development manager, and a common interest development manager is not required to have a contractor’s license when performing management services, as defined.”

SB 822 validates our belief that HOA managers were not intended to be subject to the new contractor licensing requirements. SB 822 is likely to pass and you can track the bill’s progress by clicking here.

AB 2237: Contractor Licensing Law & Its Impact on HOA Managers

Published on: May 13, 2013 | by Steven J. Tinnelly, Esq.

*New Legislation

AB 2237 was passed in 2012 by the California Legislature to expand the legal requirements for the “contractors” who are required to have a General Contractor’s “B” license from the State of California.

The “contractors” who must be licensed are defined in Cal. Business and Professions Code Section 7026.1(b)(1). They include “[a]ny person, consultant to an owner-builder, firm, association, organization, partnership, business trust, corporation, or company, who or which undertakes, offers to undertake, purports to undertake, purports to have the capacity to undertake, or submits a bid to construct any building or home improvement project, or part thereof.” (Emphasis added.)

AB 2237 expands upon this definition by adding subsection (2) to Section 7026.1(b). Subsection (2) states that a “consultant” includes a person who either: (A) “Provides or oversees a bid for a construction project,” or (B) “Arranges for and sets up work schedules for contractors and subcontractors and maintains oversight of a construction project.” This language has spawned questions from community association/HOA managers who are concerned that, as a result of AB 2237, they may now be required to hold a license in order to perform common tasks such as obtaining bids and overseeing the progress of ongoing construction work.

A careful reading of Section 7026.1 and the legislative intent behind AB 2237 reveals that the answer to that question is generally “no.” …