Maintenance

Neighbor to Neighbor Enforcement of HOA CC&Rs

Published on: February 6, 2012 | by Steven J. Tinnelly, Esq.

Owners often question whether they can enforce their HOA’s CC&Rs on neighboring owners in the event that their HOA is either unwilling or unable to do so. Owners also question whether they can recover any attorney’s fees that they expend in bringing such an enforcement action.

The recent, unpublished opinion in Klein v. Nyamthi (2012) illustrates that owners may bring such enforcement actions in certain circumstances and may also recover their attorney’s fees should they prevail.

In Klein, the Defendant was violating the HOA’s CC&Rs by not fixing a landscape grading problem which ultimately caused his neighbor’s (the Plaintiff’s) home to sustain flooding damage. The Defendant violated the maintenance and nuisance provisions of the HOA’s CC&Rs by not “plant[ing] and water[ing] the slopes of [his] property, or otherwise maintain[ing] it in such a manner” as to prevent erosion and potential flooding. In recognizing that CC&Rs essentially constitute a contract between each of the owners and the HOA, the court highlighted the fact that CC&Rs are “enforceable by the owner of any lot in the development” pursuant to Civil Code Section 1354(a). Moreover, because the Plaintiff prevailed “in an action to enforce [the] CC&Rs,” in accordance with Civil Code Section 1354(c), the court ruled that the Plaintiff was “entitled to recover [attorney’s fees] as a matter of right.”

The Civil Code does provide owners the general right to enforce their Association’s CC&Rs against neighboring owners and the Association itself. However, some CC&Rs may contain provisions which limit or otherwise affect this right in certain situations. As a general rule, it is best for an owner to defer to the enforcement efforts of her Association and its Board of Directors when violations of the CC&Rs exist. Exercising “self-help” should be a measure of last resort in the rare instances where the Association is either unable or unwilling to comply with its enforcement obligations.

2012 Legislative & Case Law Update Now Available

Published on: November 28, 2011 | by Steven J. Tinnelly, Esq.

Our “2012 Legislative & Case Law Update” newsletter is now available in our library!

The 2012 Legislative & Case Law Update provides an overview of the new legislation impacting California Homeowners Associations (“HOAs”) and the community association industry professionals who service them. The new legislation includes, among other things, bills that impose new requirements on Board Member meetings and new limitations on HOAs that wish to restrict rentals in their communities.

The 2012 Legislative & Case Law Update also provides an overview of some important new case law, along with some links to additional resources we have published on the items discussed therein.

Click here to read our 2012 Legislative & Case Law Update

Have questions on any of the new legislation or case law? Click here to send us a question online.

Granting Exclusive Use of Common Area: Approval Required?

Published on: November 15, 2011 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Our Board wants to grant homeowners exclusive use of our Association’s common area storage closets and also charge a fee to such homeowners wanting exclusive use. May they do this without membership approval?

Answered – Probably not. Civil Code § 1363.07 substantially restricts an Association’s ability to grant exclusive use of common area. Provided that your Association’s governing documents do not state otherwise, granting exclusive use of any portion of the Association’s common area requires approval by 2/3 (67%) of the membership. There are a few narrow exceptions to this requirement; however, none of the exceptions provided in Civil Code § 1363.07 likely apply to your situation.

An Association is permitted to receive monetary compensation in exchange for granting exclusive use of Association common area. Civil Code § 1363.07 requires disclosure of such compensation when the issue is presented to the membership for a vote.

Be sure to review your Association’s governing documents to determine what provisions, if any, govern the use rights of common areas and exclusive use common areas within your Association. If the Board does not have the authority under the governing documents, or does not have the requisite approval under the Civil Code, to grant exclusive use of Association common area, homeowners may bring an action in court to reverse the grant.

To submit questions to Tinnelly Law Group, click here.

Could Aging “Baby Boomers” Create New Concerns for HOAs?

Published on: August 23, 2011 | by Steven J. Tinnelly, Esq.

I read an interesting article today that discusses the potential legal problems that could arise for Community Associations that contain members of the aging “baby boom” generation. The article references a program, presented in Virginia at a CAI sponsored event, called “Aging-in-Place: The Boomer Community.”

One of the program’s co-presenters believes that “[t]hanks to a confluence of demographic, economic and social factors, more and more elderly residents are staying put rather than moving into institutional settings such as retirement or assisted-living communities. This trend toward ‘aging in place’ makes it inevitable that a higher proportion of residents in a given community will face challenges such as loss of strength, coordination and mental acuity over time, or will be diagnosed with a catastrophic illness. Unfortunately, this can create significant legal and safety questions for community associations.”

Some of the scenarios discussed in the article, including the active steps that some Community Associations are taking to better accommodate their aging membership, may be of value to you and your Association. Of particular interest are the scenarios regarding community-based shuttles and amending architectural provisions to accommodate “Med Cottages” (a.k.a “Granny Pods”).

Click here to read the entire article.

Borrowing from Homeowners Association Reserve Accounts

Published on: August 2, 2011 | by Steven J. Tinnelly, Esq.

Several clients have recently dealt with situations requiring them to consider the feasibility of borrowing from their reserve accounts in order to satisfy various financial obligations.

California law authorizes Association Boards of Directors to borrow from reserves to supplement monthly operating expenses under certain conditions. Such borrowing is usually done to fulfill an Association’s maintenance, repair, litigation or short-term cash flow needs.

When borrowing from reserves, Association members must be primarily notified of (1) of the intent to borrow from reserves, (2) the reasons for borrowing, and (3) the manner in which the funds will be repaid. Boards of Directors must be diligent in complying with these notice and disclosure requirements and in ensuring that they have a feasible plan for restoring the reserve account within one year.

Prior to electing to borrow from their Association’s reserves, Boards of Directors should consider all available sources of money in addition to other factors. Consideration of (1) realistic repayment sources (e.g., loans from financial institutions, special assessments, etc.), (2) the amount of money actually needed, and (3) the estimated length of time required to restore the reserve account may have a substantial bearing on a Board’s decision whether or not to borrow from reserves. Proper consideration of these factors and diligence in complying with the attending legal requirements will help to ensure that any decision to borrow from reserves is made in the best interest of the Association.

Content by: Jeffrey M. Hylton, Esq.

Property Owners Entitled to Compensation from State

Published on: May 2, 2011 | by Steven J. Tinnelly, Esq.

Property owners in a partially-built Northern California subdivision may be compensated by the State for flooding damage to their properties.

A Sacramento County Superior Court ruling in April held that the state violated the constitutionally property rights of the property owners by allowing the local lake to flood the surrounding landscape. The California Coastal Commission and the state Department of Fish and Game were managing the lake’s water levels in such a way as to cause flooding to a significant portion of the property owners’ land.

The court ruled that, as a result of the management plan, the state had effectively seized the homeowners land without compensation. The second phase of the trial will require a determination as to the type and amount of damage each property owner will receive from the state.

To read the full story, click here.

It is important for property owners to understand how their private property rights interact with the rights and privileges of state and local municipal bodies.

HOA Not Liable for Injuries Sustained by Independent Contractor

Published on: April 4, 2011 | by Steven J. Tinnelly, Esq.

A recently decided case held that the California Occupational Safety and Health Act (Cal-OSHA) did not impose on a Homeowners Association (HOA) any duty to an independent contractor who was injured in a fall while servicing AC units on rooftops at the HOA complex.

In Iversen v. California Village Homeowners Association, 2011 WL 1034261 (“Iversen“), an independent contractor brought premises liability and negligence causes of action against a HOA seeking damages for injuries he sustained in a falling from a ladder while servicing the HOA’s AC units. The independent contractor alleged that the HOA failed to provide a ladder that complied with Cal-OSHA regulations–a set of provisions that are “intended to assure safe and healful working conditions” for workers in California. The HOA moved for summary judgment by contending that it was not required to comply with Cal-OSHA because the plaintiff was an independent contractor and could not establish that the HOA owed him a duty of care or breached a duty of care.

City Held Responsible for Maintaining Berm Supporting HOA Property

Published on: March 14, 2011 | by Steven J. Tinnelly, Esq.

In Coronado Cays Homeowners Association v. City of Coronado (2011), the City of Coronado (“City”) appealed a judgment in which the court determined the City, rather than the Coronado Cays Homeowners Association (“Association”) is responsible for the maintenance of a berm that provides lateral support to bulkheads located on Association property.

The original developer of the project had placed concrete bulkheads along “Lot 90” of the development to act as a retainer for the waterway that was to be dredged on the adjoining lot, “Lot C”. The developer then dedicated “Lot C” to the City for public recreational use while reserving a 55′ wide easement for docks and related structures for the exclusive use of the Association’s residents.

The gradual erosion of the supporting berm in which the bulkheads are embedded resulted in the failing of several bulkheads. Though the Association conceded that it is responsible for maintaining the bulkheads, the Association sought a judicial determination that the City is responsible for maintaining the berm since it is located in the waterway.

Should a HOA Foot the Repair Bill for Dilatory Owners?

Published on: February 9, 2011 | by Steven J. Tinnelly, Esq.

A HOA may not be responsible for the entire cost to repair damage if the owner was slow to disclose the situation to the HOA.

The heavy rains that hit Southern California this winter have unfortunately resulted in many instances of leaks and water intrusion. If a Homeowners Association (“HOA”) is obligated under its Governing Documents to repair/maintain the exterior walls of units, it is likely also obligated to repair damage to the interior of units caused by water leaking through the exterior walls.

However, if an owner is unreasonably slow to notify the HOA of a leak, the HOA may not be responsible for the entire cost to repair the damage. HOA Governing Documents typically include provisions that hold owners accountable for damage caused by their willful or negligent conduct. Additionally, California caselaw requires that owners use “ordinary care and diligence” to prevent an unwarranted piling up of damages. If the owner failed to disclose the leak to the HOA in a timely manner, the HOA may hold the owner responsible for the portion of the repair cost attributable to the owner’s unreasonable delay in disclosure.

A HOA’s Governing Documents outline the HOA’s obligations to repair/maintain various areas within the community. However, situations often arise where the scope of the HOA’s obligations may not be clearly defined.

New Maintenance Protections for Recent Purchasers of Foreclosed Properties

Published on: December 27, 2010 | by Steven J. Tinnelly, Esq.

New legislation limits a HOA’s ability to fine recent purchasers of foreclosed properties for failing to maintain those properties…