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Whose Yard is it Anyway? Part I: Homeowners’ Speech

Published on: March 31, 2025 | by Sarah Paas, Esq.

Part I: Can HOAs restrict homeowners’ speech?

For individuals residing in common interest developments, the constitutional right to free speech is not applicable. While many believe that they have a right to freely express themselves by posting signs, banners, flags, and religious symbols on their own properties, they may be surprised to learn that their HOAs and condominium associations are not bound by the free speech clauses contained within the federal and state constitutions. Though, in California, this does not mean that residents automatically lose their free speech rights when they move into their associations, because the Davis-Stirling Act safeguards many of the same rights that are enjoyed by citizens residing outside of common interest developments.

Constitutional Rights to Free Speech
Both the state and federal constitutions prohibit state actors (i.e., the government) from restricting free speech, but these constitutional protections do not generally apply to purely private actors, like HOAs and condominium associations. Throughout the years, numerous exceptions to this general rule have been made. In Marsh v. Alabama (1946) 326 U.S. 501, the United States Supreme Court held that a “company town,” even though privately organized, provided many services typically reserved to a city; therefore, the private town was bound to abide by the First Amendment. The California Supreme Court has gone even further to hold that the state constitution affords broader protections than the U.S. Constitution by protecting free speech rights on privately owned property when such property is freely and openly accessible to the public. (Golden Gateway Center v. Golden Gateway Tenants Association [2001] 26 Cal.4th 1013.) Despite these rulings, most common interest developments will continue to be viewed private actors that are not subject to the same constitutional restraints as the government, because they are private organizations that are not freely and openly accessible to the public.

Statutory Free Speech Safeguards
Regardless of whether the federal and state constitutional protections apply, the California legislature has enacted various statutes that prevent common interest developments from infringing on the free speech rights of their members. These state protections are consistent with our country’s “special respect for individual liberty in the home [which] has long been a part of this Nation’s culture and law…” (City of Ladue v. Gilleo [1994] 512 U.S. 43, 44.). These statutes vary depending on the type of speech at-issue:

(i) noncommercial speech;
(ii) commercial speech;
(iii) religious symbols;
(iv) display of U.S. flags;
(v) speech/assembly rights pertaining to HOA elections, public elections, legislation and/or living with HOAs

As such, the first step in analyzing whether an association may restrict and/or ban homeowners’ speech is to identify the category of speech involved. This is because different types of speech deserve different levels of protection under the law. We will discuss each category of speech (i.e. commercial, non-commercial, religious symbols, flags, etc.) and the associated protections, in more depth, in our blog articles to follow.

Before banning and/or restricting an individual from speaking, homeowners associations should always consult with their HOA attorney to ensure compliance with the pertinent laws.

Addressing Requests for Installation of Solar Panels on Shared Common Area Roofs

Published on: October 5, 2022 | by Steven J. Tinnelly, Esq.

cs_image The rising cost of electricity, environmental considerations, clean energy and tax savings, utility company programs designed to help alleviate the demand on the grid, and the proliferation of affordable residential solar energy systems have made solar power more popular than ever. Consequently, Associations are seeing a sharp rise in homeowner requests to install solar energy systems. This presents a particularly unique set of challenges for condominium developments because of their shared roofs and other similar common area components.

Under Civil Code § 714.1, if a condo owner (“homeowner”) wants to install a solar energy system (“solar panels”) on a shared common area rooftop or adjacent garage or carport, Associations can no longer prohibit them. California law broadly requires Associations to allow homeowners to install solar panels on common area roofs of the buildings in which their unit is located or on the roofs of adjacent carports or garages. See Civ. Code §§ 714.1, 4600, and 4746.

Moreover, solar panel installations are an exception to the rule requiring 67 percent of membership approval before the Association grants use of any portion of a common area to a particular homeowner. See Civ. Code § 4600(b)(3)(J). This Civil Code exception is intended to make solar adoption in condos easier and streamline common area roof installations.

Therefore, any provision of an Association’s governing documents that effectively prohibits or materially impedes the installation or use of solar panels is deemed void and unenforceable. For instance, Association restrictions that raise the total cost of the solar panels system by more than $1,000 or decrease its performance by more than ten (10) percent from what was originally proposed by the applicant homeowner run afoul of the law and are deemed void.

However, this does not mean that a homeowner can install as many solar panels on the common area roof as he or she desires without consideration of neighbors in the building. Civil Code § 4746(b) provides that when reviewing a request to install a solar energy system on a multifamily common area roof shared by more than one homeowner pursuant to §§ 714 and 714.1, an Association may impose additional reasonable provisions.

Therefore, if a homeowner wants to install solar panels onto a common rooftop, the Association can require a solar site survey to help determine the breakdown of usable space among all homeowners sharing the roof for potential solar hardware. See Civ. Code § 4746. Because each Association is different, it is up to the Board of each Association to decide what is a fair and reasonable equitable allocation of a common area roof. If practical, each homeowner should get a proportion of the usable roof space that would result in an equal amount of energy output. This way, rather than the first installer of solar panels utilizing the ideal area(s) of the shared solar roof to the disadvantage of subsequent installers, the above equal allocation approach promotes solar equitable ownership and equal opportunity to the same quantity of solar energy.

If the site survey determines that a rooftop solar system would be impractical or the allocation of shared roof space is untenable, the Association could deny installation. See Civ. Code § 4746.

In summation, while the Association may not unreasonably restrict an owner’s request and the CA statute expressly allows for such panels on common area roofs, the Association may reasonably attach a series of requirements and conditions pursuant to which the applicant homeowner must: 1) Notify the other homeowners with the shared roof of their desired solar system installation; 2) maintain a liability coverage policy at all times and provide the Association with the corresponding certificate of insurance within 14 days of approval of the application; 3) conduct a solar site survey and provide the Association with a copy of the results, which among other things shall also include a determination of the equitable allocation of the usable solar roof area among all owners sharing the same roof, garage, or carport; 4) bind the owner and all successive owners for costs of maintenance and damages with all repair responsibilities being allocated to the homeowner and his/her successor(s); and 5) require the homeowner’s disclosures to all prospective buyers (and renters) of the restrictions and responsibilities.

The above requirements notwithstanding, the Association should get ahead of potential future issues involving solar panel systems by adopting guidelines addressing the policies and procedures regarding the application and installation of solar panels. Additionally, Boards should consider requiring the execution and recordation of a maintenance and indemnity agreement whereby the applicant homeowner assumes responsibility for the costs of repairing damage to, among other things, the common area resulting from the installation, maintenance, repair, removal or replacement of the solar panels and all related hardware. Such an agreement should also address what happens when the System needs to be removed or re-installed to accommodate community-wide roofing projects the Association may undertake in the future.

There are further concerns and other nuances that should be considered for each individual Association to ensure full compliance with the operative laws and effectively mitigate legal exposure.

Contact your HOA attorney to conduct an in-depth analysis for your community to ensure compliance with the legal requirements and help prepare a related Solar Policy and Maintenance & Indemnity Agreement.

-Blog post authored by TLG Attorney, Sam I. Khil, Esq.

Should an HOA Interfere with Parental Rights? NO!

Published on: August 24, 2022 | by Vivian Tran, Esq.

pexels-kindel-media-7105828 Children are usually considered blessings and a joy to be around. Unfortunately, there is always one slightly rambunctious child who may be prone to causing trouble in Homeowners Associations (“HOAs”). What should an HOA and/or Board of Directors (“Board”) do in such scenarios? Is there anything the HOA can legally do?

The U.S. Supreme Court and federal court recognize parents’ constitutional rights to the care, custody, and control of their children. The Supreme Court explained that the Due Process Clause of the Fourteenth Amendment protects “the right to marry, establish a home, and bring up children.” (Meyer v. Nebraska (1923) 262 U.S. 390.)

While we understand that disturbances to other members and common areas caused by a child might place everyone in a state of discomfort, the HOA should not interfere in situations where parental rights might be in question—especially in situations where there have been no obvious or implied threats to the community members’ health and safety.

Even should management report the incident(s) to the police (on the theory that the child might be a danger to the community) or child protective services (on the theory that the child might be in an unhealthy home environment causing the child to act in such a way), it is unlikely for the government to take any action beyond filing a report at such an early stage. Unless the situation is dire, the government usually prefers to remain out of familial matters. The Second Circuit held “[T]he right of the family to remain together without the coercive interference of the awesome power of the state . . .encompasses the reciprocal rights of both parent and child.” (Duchesne v. Sugarman (1977) 566 F.2d 817, 825.) The Supreme Court held that even after parents are found unfit in a contested court proceeding, they retain constitutionally protected parental rights. (Santosky v. Kramer (1982) 455 U.S. 745.)

HOAs should not assume the powers of the U.S. government and place themselves in a situation of interference with parental rights. Such a scenario could cause unwanted liabilities for HOAs. If the child at question has a disability/special needs, that child and its family would be a protected class under the law. Protected classes may not be discriminated against and, in most cases, may be granted reasonable accommodations from governing document provisions. The parents and child might sue the HOA for discrimination and harassment, especially if the parent of the child has already warned the HOA to refrain from approaching the parent and/or child. Such a lawsuit would not be favorable to any HOAs.

Accordingly, we advise HOAs to proceed with caution and to start with a simple reminder of obligations letter to the Owner of a property within community if the Board believes it would be in the best interests of the HOA to take action (i.e., benefit the health and safety of all HOA members/residents). It might even be better to wait until another incident with the child occurs before sending the reminder of obligations letter.

Of course, should any individual member feel as if their safety is being compromised at any time, we would recommend for the Board to inform that specific member to contact local law enforcement authorities to file an appropriate report. Barring any such scenario, we would advise for HOAs, as entities, to refrain from all involvement pertaining to parental rights unless absolutely necessary.

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

What the Cluck? Addressing Backyard Chickens in HOA’s

Published on: May 11, 2022 | by Carrie Heieck, Esq.

what-to-expect-when-youre-expecting-backyard-chickens-feature It is becoming increasingly popular to raise chickens in suburban and even in urban areas. Chickens offer a continuous source of fresh eggs and arguably help with pest control. Conversely, chickens can be loud, messy, attract coyotes, and arguably are best suited for rural, country life. Because many municipalities have legalized raising chickens in residential zones, HOAs are more frequently encountering owners maintaining chickens in their communities, some even allowing their chickens to roam the common area alongside the family dog.

If the HOA’s governing documents prohibit chickens (also referred to as poultry or livestock), the HOA may require residents to remove their feathered friends from the community. It is important to note that while municipalities may allow a limited number of domesticated chickens in residential zones, it is well-established that an HOA’s governing documents may be more restrictive than local ordinances. So, if the county or city allows chickens, but the more restrictive governing documents do not, the governing documents control.

Chickens may also be prohibited by nuisance restrictions contained in the governing documents. The aforementioned noise produced by roosters along with frequent, malodorous, and non-solid waste arguably constitute an ongoing violation of nuisance restrictions sufficient to require the chickens’ removal.

Oftentimes, when an HOA requires the removal of a prohibited animal, requests to allow the animal to remain on the premises as an emotional support animal (“ESA”) arise. Under the federal Fair Housing Act, which applies to homeowners associations, a housing provider is required to make reasonable accommodations for assistance animals including ESA’s even though they are not trained to do work or perform tasks. Allowing an emotional support animal which would otherwise be prohibited under the Association’s governing documents is a recognized type of reasonable accommodation for a disability under California’s Fair Employment and Housing Act. (Auburn Woods HOA v. FEH Commission (2004) 121 Cal App. 4^th 1578).

Chickens are not typical ESA’s like dogs or cats, but the creativity of Americans is without bounds as evidenced by the wide variety of alleged ESA’s seen on commercial flights including peacocks, turkeys, pigs, monkeys, and hamsters. Due to the complex legal issues and potential exposure to liability associated with reasonable accommodation requests, it is recommended to contact legal counsel immediately if a resident requests to keep a chicken or any other otherwise-prohibited animal due to a disability or medical condition.

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

How to Determine Whether Compliance Fines are Reasonable

Published on: March 30, 2022 | by Steven J. Tinnelly, Esq.

*Asked and Answered

Asked – How long should homeowners associations levy compliance fines against non-compliant Members before transferring the files to legal counsel?

Answered – Monetary penalties (also known as “fines”) should be levied against non-compliant homeowners so long as the purpose of the fines is to deter the homeowners’ unwanted behavior and resolve their outstanding violations. Fines should never be levied to punish the homeowners or raise money for the association. As soon as it becomes clear that fines are not effectively compelling compliance with the governing documents, the Board of Directors (“Board”) should consider alternative enforcement strategies, like Alternative Dispute Resolution (“ADR”) or litigation, in lieu of continued fines.

Associations have a duty to enforce their governing documents. (Nahrstedt v. Lakeside Village (1994) 8 Cal.4th 361, 383.) Typically, the governing documents also grant the Board with rulemaking authority, which impliedly authorizes the Board to compel compliance with those rules by imposing monetary penalties. (Liebler v. Point Loma (1995) 40 Cal.App.4th 1600, 1613.) All fines must be levied in accordance with the association’s published fine schedule, which should be distributed to Members in the annual policy statement.

In order for compliance fines to be enforceable, the Board must ensure that the fines are reasonable. There is no bright line rule to make this determination. Instead, the Board must consider whether the fine amount actually serves to deter homeowners from violating the governing documents. This requires Boards to tailor the fines to the demographics of their communities. What is reasonable in one community may not necessarily be reasonable in another.

If, after imposing several fines, an association is not able to compel a homeowner to comply with the governing documents, then the Board should not continue to levy additional fines. Otherwise, the association may be unable to collect those fines, as they were not reasonably levied to compel compliance. Similarly, Boards should consider waiving previously imposed fines after homeowners comply and resolve their outstanding violations, as the fines served their intended purpose.

Homeowners associations should ensure that they adhere to their reasonable fine schedules, which were designed to compel homeowners to comply with the governing documents. However, as soon as it becomes clear that monetary penalties are not effective deterrents, then the outstanding matters should be transferred to legal counsel for further review and advisement.

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

Unmasking Your HOA’s Common Area Facilities

Published on: February 17, 2022 | by Matthew Plaxton, Esq.

hoa-masks-covid-300x200

California has lifted its indoor mask mandate for vaccinated individuals. While most HOA industry professionals took the position that the mask mandate did not apply to common interest developments and the HOAs that govern them because such facilities are not “places of public accommodation” (see Carolyn v. Orange Park Community Ass’n (2009) 177 Cal.App.4th 1090), for those imposing such a requirement, starting February 16th, they no longer need to require the use of masks for vaccinated individuals while inside common area facilities (e.g., HOA clubhouses, gyms, etc.).

This does not mean that HOAs are necessarily required to obtain proof of vaccination; rather, HOAs can simply post signage requiring residents to wear mask if unvaccinated. Moreover, some local mask mandates remain in place despite the State easing their restrictions. It is therefore important for each association to check with local authorities to determine what restrictions remain in place.

HOA Boards of Directors and management professionals that have questions regarding what common area facility policies must be in place to satisfy State and local requirements with respect to COVID-related issues should contact their HOA lawyer for guidance.

-Blog post authored by TLG Partner, Matt Plaxton, Esq.

Can Private Parties Restrict Parking on Public Streets?

Published on: December 1, 2021 | by Steven J. Tinnelly, Esq.

*Asked and Answered

Asked – Can Homeowners Associations Restrict Parking on Public Streets?

Answered – Possibly. The restrictions set forth in the CC&Rs are known as equitable servitudes that “run with the land.” This means that when an owner takes title to the property, he is automatically bound by the restrictions in the CC&Rs, which are recorded against his property. Those restrictions continue to burden and benefit every successive owner, who later takes title to the property.

The CC&Rs contain restrictions pertaining to the maintenance of the encumbered land, but they also contain restrictions that regulate how members can use the land. When dealing with parking restrictions that attempt to regulate the aesthetics of the community, a reasonable argument could be made that the restrictions apply to all member conduct, regardless of whether that conduct occurs on private or public streets within the development.

California courts have not yet published caselaw to address this issue. There is, however, an unpublished case from 1978, Lake Forest Community Association v. Noble (Orange County Superior Court No. 197563), in which the California Court of Appeal found that private parties can regulate parking on public streets in order to protect the association’s property values. In this case, the homeowner was parking a truck camper on the public street in front of his property in violation of the CC&Rs. The Court found that the homeowner was contractually obligated, via the CC&Rs, to refrain from parking his truck camper anywhere within the community, including the public streets.

Since this case was not published, it is not controlling law. This means that another California judge might rule differently. Although, homeowners associations have reasonable grounds to assert that the parking restrictions in their CC&Rs apply to member conduct on both public and private streets within the community in order to preserve the property values.

CC&Rs restrictions dealing with parking vary greatly from association to association; therefore, the Board of Directors should first consult with an attorney to determine whether they will be able to successfully enforce parking restrictions on public streets within the development.

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

Returning to the New Normal- Post COVID: A Diary Entry by Rip Van Winkle

Published on: June 23, 2021 | by Steven J. Tinnelly, Esq.

[As written by Rip Van Winkle on June 15, 2021]

In early March 2020, I fell asleep upon drinking my favorite beverage on a California beach. When I awoke today on June 15, 2021, I am surprised to see people celebrating in the streets and face masks in the trash. Home prices are sky high and the cost of a gallon of gas is near $5. What happened during my slumber?! Everything looks normal to me – but is it? Help!

On June 15, 2021, the state of California fully reopened under the New Normal. According to the state’s web site, Governor Newsom terminated “the executive orders that put into place the Stay Home Order and the Blueprint for a Safer Economy.” Previously, it noted that beginning June 15, 2021, all sectors listed in the current Blueprint Activities and Business Tiers Chart may return to usual operations…” How will the state’s reopening plan affect HOAs throughout the state? The purpose of this article is to briefly summarize what some have described as the New Normal – and to address whether HOAs can reopen without restrictions.

The New Normal

COVID-19 continues to be present in smaller numbers throughout the state. The Centers for Disease Control (“CDC”) states that some vaccinated people will still get sick because “no vaccines are 100% effective” and provides that it is “still learning how long COVID-19 vaccines protect people.” Data suggests that some California citizens remain unvaccinated. As of June 17, 2021, the California Department of Public Health (“CDPH”) maintains that the “risk for COVID-19 exposure and infection will remain until we reach community immunity from vaccinations, especially in communities heavily impacted by COVID-19.”

Now that the state will no longer be subject to the state’s COVID-19 health guidelines, does that mean that HOAs can return to pre-COVID operations under the New Normal without regard to prior and existing health recommendations? Not necessarily.

Since the Governor’s March 2020 Executive Order, the state has largely deferred to health mandates imposed by local counties. While the state may have lifted its Blueprint for a Safer Economy, it is possible that some counties may continue to impose COVID-19 limitations for their local populations based upon their respective COVID-19 metrics. “Nothing in this Order shall be construed to limit the existing authority of local health officers to establish and implement public health measures within their respective jurisdictions that are more restrictive than…the public health measures imposed on a statewide basis pursuant to the statewide directives of the State Public Officer.” (Executive Order N-07-21 dated June 11, 2021). Accordingly, it is advisable for HOAs to review local requirements before deciding to resume pre-COVID business (i.e., reopening facilities and holding in-person Board meetings, among other things).

The state’s decision to fully reopen potentially creates confusion regarding the application of health guidelines and safe practices. Fortunately, the Centers for Disease Control (“CDC”) provides a default framework for community associations to evaluate as they reopen throughout the state.

Liability Considerations

During the New Normal, boards of directors and management professionals should not overlook the CDC’s COVID-19 guidance, particularly because reviewing that material could help to prevent liability exposure for the Association. The CDC provides guidance for shared or congregate housing, and multifamily housing (e.g., condominiums and townhouses). The principles from those resources could apply to resident gatherings within community associations, such as in-person board meetings and community events. The CDC web site includes COVID-19 instruction for many daily activities that are fixtures within HOA communities, such as gyms or fitness centers, playgrounds, and pools. HOAs would be well served by considering the adoption of safeguards which appreciate the CDC’s guiding principles in those contexts (i.e., encouraging social distancing and mask wearing; sign posting; and resident education, etc.) because the landscape in 2021 is much different than it was in 2019.

Community associations possess the obligation to discharge their legal responsibilities in accordance with certain standards of care. They can be responsible for harms to third parties if their conduct is considered to be negligent by acting or by failing to act (CACI 400). Negligence is defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”(Restatement Second of Torts, section 282). In general, one is required to exercise the care that a person of ordinary prudence would exercise under the circumstances. The California Supreme Court held the following: “Because application of [due care] is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997).

Notwithstanding the state’s reopening, the amount of care now exercised by HOAs might require a greater appreciation or awareness of safe procedures, in view of the present COVID-19 risk and current health standards. CDC and state/local guidelines, to the extent available, provide detailed guidance that can be considered in that regard. Below are suggested practices for some common HOA functions:

HOA Function

Recommended Practice

Indoor Board Meetings

Face Mask Coverings – see CDPH’s “Guidance for the Use of Face Coverings – Effective June 15, 2021”, or applicable County guidelines, whichever is stricter. Click here for our recent blog post regarding face mask coverings.

Holding Gatherings – see CDC guidance.

Maintenance of Common Area Amenities

Continuance of enhanced cleaning and disinfection practices – beyond those practices in place before the March 2021 Stay at Home Order.

Maintaining Healthy Environments – see CDC Guidance.

Rejoice! It looks like we may be close to the light at the end of the tunnel. Much has changed since I fell asleep. What appears to be normal may not be. I know that I can ask my trusted HOA lawyer for assistance as I take measures to protect my community – but maybe not at the beach… RVW

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

California is Reopening – But What Does That Mean for HOAs?

Published on: June 15, 2021 | by Carrie Heieck, Esq.

201167609_10158535966747582_6734223399279805886_n As of June 15, 2021, Governor Newsom terminated the executive orders that created the Stay-at-Home Order and the Blueprint for a Safer Economy. These orders have been replaced with and superseded by a new State Public Health Officer Order of June 11, 2021 (“Current Order”). This New Order requires all individuals, regardless of vaccination status, to wear face coverings: 1) on public transit; 2) indoors in schools and in childcare; 3) in healthcare settings; 4) in correctional facilities and detention centers; and 5) in homeless and emergency shelters. Vaccinated people may now forego face coverings in public places, including indoors, but unvaccinated persons must still wear face coverings in these locations.

The vast majority of HOAs are not open to public as their common area amenities and facilities are for the use of residents and their guests only. The Current Order, by its plain language, does not apply to these private businesses, which means that HOAs not open to the public are free to adopt their own reasonable rules related to face coverings and social distancing in common areas while the COVID-19 pandemic continues. Although progress has been made in vaccinations and in reducing community transmission, the pandemic is still ongoing, and the risks are still very real. However, the lifting of the state mandates and improved conditions means that HOAs are opening their community facilities and loosening restrictions on their use.

HOAs are tasked with various responsibilities and obligations to ensure the continued operation and well-being of the Association. Those obligations include keeping common areas safely maintained. The Association must continue to fulfill these obligations despite the lifting of governmental mandates through the adoption of reasonable rules.

It is arguably reasonable for HOAs to mirror the provisions of the Current Order when opening community facilities, although HOAs can choose to be more restrictive if the Board determines this course of action to be in the Association’s best interest. However, only lifting masking requirements for vaccinated persons creates significant enforcement difficulties. Specifically, it forces the HOA to ask people if they are vaccinated. While asking persons if they are vaccinated is lawful (HIPAA is only applicable to healthcare providers), many will consider answering questions concerning their private health information an invasion of their privacy and by that same token, may refuse to answer. The law does not require anyone to answer such a question.

Moreover, an unvaccinated person could simply lie. Asking for vaccination cards poses the same dilemma and is arguably an even more egregious invasion of privacy. The administrative costs of implementing a registry of vaccinated versus non-vaccinated persons is also a concern as is monitoring who must and who may not wear masks at the facilities at any given time. Furthermore, vaccination is not fully achieved until two (2) weeks after the second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or until two (2) weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine. Determining when individuals received their shots adds an additional and undesirable layer to the screening and questioning process.

An additional concern is that some persons may not be vaccinated because of a medical condition or because of their religious beliefs which raises potential discrimination issues related to vaccine verification and questioning. Therefore, some HOAs are implementing an “honor system” in the form of a rule or policy that requires residents and guests who are not vaccinated to wear masks and allows those who are vaccinated to use the facilities without masks and without the HOA questioning or requiring proof. This model obviously carries the risk that an unvaccinated person will use the facility without a mask.

Another arrangement is to simply require all residents and guests to wear masks in the common area regardless of vaccination status, unless they are sunbathing, exercising, etc. This policy can be combined with social distancing requirements and sanitization efforts to provide increased safety and protection to facility users. Many businesses open to the public are still requiring the wearing of masks and may continue to do so for the protection of their customers even if the state or county does not mandate such measures. This model also eliminates the administrative costs and hassle of the screening and policing of mask-wearing for the unvaccinated only and reduces liability for those who feel discriminated against or otherwise wronged by an intrusive vaccine verification or questioning policy.

Regardless of the rules adopted by an HOA to protect residents from COVID-19 transmission, it is advisable for an HOA to post notices in community facilities advising users of the risks and that by using the facility, they agree to assume such risks. Depending on the policy adopted by the HOA regarding mask wearing, said notice should also reiterate face covering requirements for the facility’s use. The requirement for users to sign waivers prior to using the facilities is still a potential option to add an extra layer of protection, but HOA’s should discuss the use of waivers with their legal counsel which takes that HOA’s location and unique characteristics into account. While not a guarantee that the HOA will not be sued if someone catches COVID-19 in a common area, such measures may help mitigate the Association’s legal exposure resulting from reopening.

HOAs should contact their legal counsel to prepare appropriate rules and policies for reopening in light of the Current Order.

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

Court of Appeals Holds that HOAs Do Not Have a Duty to Provide Onsite Parking to Invitees

Published on: June 15, 2021 | by Steven J. Tinnelly, Esq.

*New Case Law

The Court of Appeals recently ruled in Issakhani v. Shadow Glen Homeowners Association, Inc. (2021) 63 Cal.App.5th 917, that homeowners associations do not have a duty of care to provide onsite parking to invitees. In that case, a pedestrian was struck by a car when jaywalking across a five-lane highway at night. The pedestrian was visiting her friend, who lived in a condominium project. The pedestrian decided to park across the street because the complex did not have any guest parking spots available.

The pedestrian sued the condominium owners association (“association”) for negligence and premises liability on the basis that the association did not have enough onsite guest parking spaces. The pedestrian argued that the association was liable because the association’s failure to maintain the “required” number of guest spots created a foreseeable risk of harm to the association’s guests.

The association moved for summary judgment, and the trial court granted the association’s motion. The Court of Appeals agreed and ruled that the association, as the landowner, did not owe a duty of care to invitees to provide adequate onsite parking.

Common Law Duty of Care

A “duty of care” exists when a person has a legal obligation to prevent harm to another person. If that person breaches his or her duty, then that person is subject to liability. A duty of care can arise under either the common law or through legislative enactments (i.e., statutes).

The common law requires landowners to maintain their properties in “reasonably safe conditions.” This duty also requires landowners to ensure that the maintenance of their land does not expose others to unreasonable risk of offsite injuries. In other words, landowners may be required to protect invitees against offsite injuries, if those offsite injuries are caused by alleged onsite deficiencies.

To determine whether the association owed a duty of care to the pedestrian in this case, the Court of Appeals looked to existing California caselaw.

California courts have historically refused to impose a duty of care on landowners to provide onsite parking in order to protect invitees from the dangers of crossing nearby streets. In the most recent case of Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, the California Supreme Court held that landowners are not required to provide onsite parking for invitees.

As such, the Court of Appeals ruled that the common law duty of care does not require a landowner to provide onsite parking to invitees in order to protect those invitees from traffic accidents occurring offsite. Therefore, the association did not owe a duty of care toward the pedestrian in this case.

Statute-Based Duty of Care

A duty of care can also stem from a statute or ordinance enacted by the legislature. The pedestrian argued that the association owed her a duty of care by virtue of the guest parking requirements set forth in City of Los Angeles Ordinance No. 151,411 (“Ordinance”). The Ordinance required that the association maintain 34 guest parking spaces. The pedestrian argued that the association violated its statute-based duty of care since the association only had 6 guest parking spots.

Statutes and ordinances can create duties of care giving rise to negligence claims when they set forth generally applicable, “fundamental policy decisions.” However, a duty of care arises in those cases only when the person invoking the statute-based duty of care is a member of the class of persons that the statute was designed to protect, and when the harm suffered by the person invoking the statute-based duty of care is the type of harm that the statute was designed to prevent.

In this case, the Court of Appeals found that the Ordinance did not embody a generally applicable fundamental policy decision, because the Ordinance only applied to a single parcel of property. The Ordinance was simply a result of an internal, parcel-specific administrative review initiated by the developer to rezone the parcel of land.

Even if the Ordinance were found to embody a fundamental policy decision, the Court of Appeals explained that it was not designed to protect invitees from offsite traffic accidents. Instead, the Ordinance was part of a rezoning request that was designed to protect the community-at large by preserving the residential character and aesthetics of the surrounding neighborhood. Therefore, the Ordinance did not create a statute-based duty of care that could be used by the pedestrian to assign liability to the association in the underlying lawsuit.

This case rejects the notion that HOAs have a duty to provide guests with onsite parking in order to protect those guests from the dangers of crossing streets to access the community. However, HOAs should be aware that they still have a duty to maintain their properties in conditions that do not exacerbate the dangers of guests entering or exiting the communities. For example, HOAs should take steps to ensure that the Common Area landscaping is not maintained in a manner that makes exiting or entering the community more dangerous.

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