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Articles Posted in Rules & Regulations

what-to-expect-when-youre-expecting-backyard-chickens-featureIt 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. 4th 1578).

California HOA lawyers 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.

cost-of-DWI*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.

California HOA lawyers 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.

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.

California HOA lawyers 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.

parking-tips

*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.

California HOA lawyers 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.

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.

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