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Picture1[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.

California HOA lawyers 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.

201167609_10158535966747582_6734223399279805886_nAs 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.

California HOA lawyers 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.

NkYIgAhLP*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.

California HOA lawyers 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.

*Asked & Answered

workplace-bullying-1024x683-1Asked – How should our HOA handle a hostile homeowner who is being abusive to other residents and overwhelms management staff with endless emails and other harassing communication?

Answered – We previously blogged about workplace harassment and hostile work environments for management professionals.  Unfortunately, harassment in Associations is becoming increasingly common these days. The COVID-19 pandemic-related difficulties has only heightened tensions and exacerbated this problem by further triggering those with a propensity for such hostile behavior and visceral outbursts.

While most Community Managers have had some experience dealing with abusive homeowners, hostile homeowners tend to exhibit unrelenting behavior that is challenging and highly disruptive notwithstanding management’s best efforts and great work on behalf of the community. They tend to inundate management staff with incessant and baseless complaints regarding perceived or self-inflicted issues, frivolously question Board actions, and are frequently the primary source of widespread tensions that lead to controversies with other residents.

One helpful guiding principle when encountering such hostile homeowners, is to step back and remember that the management company was hired to serve as the managing agent for the Association. Thus, Management’s primary responsibility is to implement the Board’s directives and to serve as a communications liaison between the Board and the residents. For the most part, substantive decisions are made by the Board at the monthly Board meetings. Recognizing this dynamic can assist management staff and the Board when encountering confrontational homeowners. Thus, when responding to emails or other correspondence from such homeowners, Management can simply  acknowledge receipt of the communication, thank the homeowner, and advise them that the Board values resident communication relating to Association business and that you understand their concerns and will forward their communication to the Board for review at the next Board meeting. Then, timely engage the Association’s legal counsel to deal with the problem and to protect the Association’s interests.

If the compulsive emailing or hostile communications persists, then the homeowner can be informed that his/her emails will be blocked by Management and if they wish to send written communication, they send a letter to Management, and it will be placed in the Board packet to be reviewed by the Directors at the next scheduled Board meeting.

While the hope is that Management can get the hostile homeowner under control while memorializing the Association’s good faith efforts to avoid any escalation, the reality is that an overwhelming majority of homeowners who exhibit hostile tendencies will remain unyielding and continue on their ill-advised path until confronted with more serious financial and/or legal ramifications.

Therefore, it is very important that the Board of Directors and Management get the Association’s legal counsel involved as soon as possible in the process. Particularly, the Board should have the Association’s legal counsel send the offending homeowner a formal Cease and Desist letter that fully articulates the misconduct, outlines the basis for the violation, and puts the homeowner on notice that they will be subject to fines and possible legal action if the troubling conduct and violation are not immediately ceased. The letter should preferably also suggest an alternative means of dealing with the purported underlying problem. While this approach generally reaches a good number of offending homeowners, some will inevitably remain undeterred by the formal letter.

If the hostile behavior persists, the Board should consider holding a hearing and start levying fines. Thereafter, and depending on the severity of the ongoing homeowner misconduct, the Board may consider initiating an Internal Dispute Resolution process, or sending a further demand for compliance coupled with a pre-litigation offer of alternative dispute resolution (ADR). These steps will generally resolve the majority of violations and behavioral issues.

California HOA lawyers However, if the homeowner lacks any appreciation for the preservation of his/her financial and legal interests and the bad behavior persists, the Board should seek judicial relief by way of a restraining order, suing the hostile homeowner, and seeking recovery of its legal fees and costs pursuant to the Association’s Declaration. Our expert attorneys stand ready to answer your questions, help resolve your matter involving hostile homeowners or other difficulties, and ensure that the Association’s interests are always protected. 

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

short-term-rentals-300x169-1*Unpublished Opinion

Short term rentals (“STRs”), which are generally defined as rentals for periods of thirty days or less, are lucrative investments that have withstood the economic impact of the pandemic far better than traditional hotels due to the perception of them being a safer alternative. However, STRs in residential homeowners associations are known for burdening said HOAs with a revolving door of transient occupants on vacation who often do not observe the community’s rules, disturb the quiet enjoyment of other residents, who place more wear and tear on community amenities, and who arguably detract from the residential character of the neighborhood. Homeowners associations may restrict such short term, transient use of property through express and explicit provisions contained in recorded Covenants, Conditions and Restrictions (“CC&Rs”).

California case law has upheld HOAs’ authority to restrict STRs. (See Watts v. Oak Shores Community Association (2015) 235 Cal. App. 4th 466.)  However, for such a restriction to be effective, the language in the CC&Rs must explicitly restrict STRs as demonstrated by a recent unpublished California Court of Appeals decision from the Fourth District, Lastavich v. Nob Hill Homeowners Association et al.(Case No. D075466) (“Nob Hill”), which held that the CC&Rs of a four-unit condominium HOA located in the City of Carlsbad did not operate to restrict STRs. The applicable language in the Nob Hill CC&Rs stated that each of the units were to “be used as a single family residence and for no other purpose or purposes.” The Nob Hill CC&Rs notably did not expressly prohibit commercial or business use of the property nor did they expressly prohibit STRs or transient use of the property.

Plaintiff, an owner in Nob Hill, sued the HOA and two other owners who had been regularly renting their units for less than thirty days, to enjoin such STRs claiming that the applicable restrictive language prohibited commercial enterprises including STRs. The trial court entered judgment in favor of the HOA and defendant owners, finding that “short term vacation rentals are not a business and that their use do[es] not violate the CC&Rs.” On appeal, the Fourth District affirmed the trial court’s decision. The appellate court’s decision was based on a “just and fair” interpretation of the CC&Rs conducted in favor of the unencumbered use of the property.  Key to this interpretation were the undisputed facts that the plain language of the CC&Rs allowed for leasing, did not expressly prohibit short term or vacation rentals, did not expressly prohibit business or commercial use of the property (nor did it define STRs as a business or commercial use of the property), that owners had been renting the property on a short term basis for many years out in the open and with Plaintiff’s knowledge, and that the Declarant testified that she did not intend to prohibit or restrict STRs when she established the HOA.

Ultimately, the appellate court held that restrictions on the use of land cannot be “read into” CC&Rs by implication and determined that the CC&Rs did not expressly or implicitly prohibit or restrict the use of the units as STRs. The court noted that to restrict STRs at Nob Hill, the CC&Rs would only need a single sentence in the CC&Rs, when originally drafted in 1986 or as amended, to limit the rental of the Nob Hill units to a certain minimum number of days. The absence of such language presented a fatal defect in Plaintiff’s case.

California HOA lawyers The key takeaway from Nob Hill for community associations is that California HOA’s cannot rely merely on a single-family use restriction in their CC&Rs to operate as a restriction on STRs. STRs do not automatically qualify as a business or commercial use of the property absent language in the CC&Rs defining them as such. Without language specifically prohibiting rentals for thirty days or less, a court will not likely read such a restriction into the CC&Rs. Although the passage of AB 3182, effective January 1, 2021, makes rental restrictions generally unenforceable, short term rental restrictions of thirty days or less are excepted. (Civil Code 4741(c)).  Amending governing documents to comply with this new law by December 31, 2021 is required or HOA’s are subject to fines. (Civ. Code §4741(f)&(g).) Associations are encouraged to contact their counsel, both to comply with this new law, but also to ensure that enforceable, well-drafted STR provisions are incorporated into their CC&Rs in the process of such compliance.

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

116390863_l-1024x683-1Neighbor-to-neighbor disputes are on the rise. These types of homeowner conflicts are typically characterized as governing document violation complaints that are personality conflicts between neighboring homeowners rather than legitimate concerns that impact the Association and its membership more broadly. Refereeing these squabbles can quickly become burdensome and costly for an Association and its volunteer Board where the complaining homeowner is attempting to use the Association’s enforcement authority as a weapon against their neighbor. Accordingly, Associations plagued with complaints over these types of homeowner tiffs should consider setting clear limits to their involvement in such matters.

Management companies and Boards often receive homeowner complaints for alleged violations that are not easily discernable through a visual inspection of the community. A common neighbor-to-neighbor dispute is a noise complaint like a barking dog or an upstairs disturbance where no other neighbors have complained of the noise and where there are no other witnesses to the alleged ruckus. These complaints are often repetitive, adding to their burdensome nature. Initially, the Board has a duty to investigate the alleged violation, which often falls under a general nuisance provision in the CC&Rs. However, if after investigation, the Board does not find demonstrable or credible evidence that a nuisance or other governing document violation exists, such as where the only evidence is one neighbor’s word against another’s, the Board is well within its authority to deem the matter a neighbor-to-neighbor dispute and to exercise its discretion to decline further action. Failing to exercise restraint in intervening in these disputes could result in problems for the Association by increasing its operational burdens, and by having the balance of its membership subsidize (via their assessments) the resolution of isolated disputes between feuding neighbors that have no bearing on the Association or on a significant portion of its membership.

Declining to intervene in a neighbor-to-neighbor dispute does not leave homeowners without recourse. Each homeowner may enforce the governing documents in their individual capacity against other homeowners (Civ. Code 5975(a)). Depending on the situation, they may also contact local law enforcement, animal control, or request appropriate relief in the civil court. While the complaining homeowner may object to the Association’s use of its discretionary power to decline intervening, “anyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual.” Nahrstedt v. Lakeside Village Condominium Association, Inc. (1994) 8 Cal.4th 361, 374.

Due to uncertainties in determining what constitutes a neighbor-to-neighbor dispute and when to (and when not to) intervene, Boards are encouraged to contact their legal counsel to discuss adopting a Neighbor-to-Neighbor Dispute Policy. Such a policy may be drafted in a manner to prevent the Association’s involvement in a Neighbor-to-Neighbor Dispute until such time as the complaining homeowner demonstrates their willingness to expend their own resources in trying to work out a resolution directly with their neighbor through requiring participation in Alternative Dispute Resolution (“ADR”) before the Board will consider involvement.

California HOA lawyers Boards are cautioned that legitimate complaints by residents of harassment on the basis of their membership in a protected class are not neighbor-to-neighbor disputes and must be investigated and addressed. See Code of Fed. Reg. §100.7(a)(1)(iii). California HOA’s have been deemed housing providers under the law for purposes of requiring their compliance with this statute. Boards are encouraged to discuss adopting an Anti-Harassment Policy with their legal counsel to address these types of complaints.

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

*New Legislation

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

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

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

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

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

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

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

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

bigstock_Yard_Signs_At_Residential_Stre_229727968As we draw near to the 2020 election, many residents living in HOAs have decided to install yard signs and other displays for their chosen candidate or cause. Many of these “noncommercial” signs have sparked fury in those who oppose such views, calling upon the Board of Directors to have such signs removed. Thus, in recent months, we have received numerous requests from our clients to provide an opinion as to the extent to which a HOA may regulate the display of such non-commercial signs.

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

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

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

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

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

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

Support-animal-1*Asked & Answered

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

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

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

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

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

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

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

CPSC-Statute-of-Limitations-scaled-e1585591179590*Asked & Answered

AskedIs the Board of Directors required to bring legal action, within a certain timeframe, against a homeowner, who is violating the association’s governing documents?

Answered In most circumstances, the association has five (5) years to bring legal action against violating homeowners pursuant to the Statute of Limitations.  (See Code Civ. Proc., § 336(b).)  The Statute of Limitations begins to run from the time the board discovers the violations or, through exercise of reasonable diligence, should have discovered the violations. Determining when the Statute of Limitations begins to run is a fact intensive inquiry, which must be evaluated on a case-by-case basis.

The five-year Statute of Limitations tolls (or is extended) in two limited circumstances.  The Statute of Limitations will toll for a period of thirty (30) days after a party (either the HOA or a homeowner) offers Alternative Dispute Resolution (“ADR”). (Civ. Code, § 5945(a).)  The Statute of Limitations will later toll for a period of ninety (90) days after one party accepts ADR, so that mediation can take place. (Civ. Code, § 5945(b).)  This tolling period will also include any extensions agreed to, in writing, by the parties. (Civ. Code, § 5945(b).)

HOAs should keep in mind that even if the Statute of Limitations has not yet expired, the Court has the authority to prohibit an HOA from initiating legal action if it believes that the HOA failed to promptly enforce the governing documents.  These legal defenses are known as the defense of “laches” and “waiver.”  The defense of laches requires a homeowner to prove that he was prejudiced by the HOA’s unreasonable delay in enforcing the governing documents.  Whereas, the defense of waiver requires a homeowner to prove that the HOA failed to promptly remedy a sufficient number of similar violations throughout the community, so that the HOA’s related rules and regulations generally appeared to be waived.  The theory is that by failing to enforce some violations, the HOA induced other similarly situated homeowners to believe the association’s governing documents were no longer subject to enforcement.

To avoid these potential defenses, HOAs should act promptly to enforce the governing documents upon learning of a violation.  Although, it is important to note, that HOAs are not required to initiate litigation for every potential violation.  HOAs can, alternatively, enforce their governing documents without legal action via monetary penalties and/or the suspension of privileges.

When the board of directors discovers a violation, or is notified of the same, it should promptly investigate the matter to determine the best course of action to compel the homeowner’s compliance.  Before resorting to litigation, HOAs should always weigh the costs of litigation, the seriousness of the violation, and the likelihood of success at trial.  The board of directors possesses wide discretion to determine whether or not to move forward with litigation, so long as the board is acting in good faith and in the best interests of the association.  In the case of Beehan v. Lido Isle Community Association, the Court of Appeal held:

“The power to manage the affairs of a corporation is vested in the board of directors. Where a board of directors, in refusing to commence an action to redress an alleged wrong against a corporation, acts in good faith within the scope of its discretionary power and reasonably believes its refusal to commence the action is good business judgment in the best interest of the corporation, a [Member] is not authorized to interfere with such discretion by commencing the action…. ‘Every presumption is in favor of the good faith of the directors. Interference with such discretion is not warranted in doubtful cases.” (Beehan v. Lido Isle Community Association (1977) 70 Cal.App.3d 858, 865.)

California HOA lawyers If an HOA is uncertain as to whether the Statute of Limitations has expired for an outstanding homeowner violation, the board of directors should consult with its legal counsel to determine whether the HOA has the ability to remedy the outstanding violation through legal action, or to address such violation through alternative means.

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

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