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bigstock-Election-Campaign-Election-Vo-131448176-1-1140x660-1We have just passed the two-year anniversary of California Civil Code 4515. This is the law that protects certain rights of members and residents to political speech and peaceful assembly within California community associations. With election season in full swing, it is important for Boards and management to be reminded that the rights afforded to members and to residents by Civil Code 4515 to utilize Association common area facilities and to campaign are not unlimited.

For many associations, Civil Code 4515 comes into play when members or residents (the code applies to both) seek to use common area facilities to hold campaign or political rallies. Rules that previously required the payment of a deposit and/or fee plus proof of liability insurance to reserve a facility for an event needed to be revised in light of the new law, which prohibits such fees, deposits, and insurance for those using the common area facilities for assembly purposes. Managers and Boards were left with the burden of determining how to differentiate between those wishing to use the common area facilities for private events such as birthday parties where a fee can still be charged and those who desired to use those same facilities for assembly purposes where fees cannot be charged.

Reasonable Restrictions on the Use of Common Area Facilities for Assembly Purposes. Association rules & regulations and facility use agreements are useful tools in balancing the requirements of the law with reasonable restrictions that protect the Association. Possible restrictions on the use of facilities for assembly purposes are as follows:

  1. Not open to the public: Both the rules and facility use agreements may require that any 4515-related meetings or events be restricted to members, residents and their guests only so as not to open the Association’s facilities to the public. If the Association is open to the public, it must comply with the Americans with Disabilities Act, a costly endeavor that exposes the Association to potential significant liability if the strict ADA requirements are not met.
  2. Occupancy restrictions: The fire department of each city typically sets maximum occupancy limits for association facilities such as clubhouses. Those reserving the facilities should be required to limit their events to no more than what is permitted by the fire code or to any other reasonable number determined by the Board as the maximum capacity for each facility. Attendance beyond capacity burdens Associations with traffic, potential for unruliness and nuisance, and excess strain on common area components such as restrooms.
  3. Responsibility for damages: Although no fee or deposit may be charged upfront, this does not mean members cannot be held responsible for damage caused to the common area by their residents and guests during 4515-related gatherings. A facility use agreement may be required for anyone reserving the facilities. Reservations should be required in advance and a stated purpose should be required when making the reservation that the meeting is for proper assembly purposes pursuant to Civil Code 4515. If a non-member resident wishes to use a facility for a proper assembly purpose, the member who owns the Lot/Unit where the resident resides may be required to sign such an agreement assuming responsibility for any damage caused at their event. Additionally, most CC&Rs contain a provision that makes members responsible for damage caused to the common area by them, their tenants or guests and many of these damages can be levied as a reimbursement assessment, depending on the language of the Association’s CC&Rs.
  4. Cleaning fees. A facility usage agreement can also require that a member and/or resident reserving a common area facility return the facility in the same condition in which they received it, which includes cleaning and the disposal of trash. If the individual fails to return the facility in the same condition, the Association can charge the responsible member for cleaning fees as required by a facility usage agreement.
  5. Parking: Parking is a concern for many associations and the scheduling of a large rally poses a potential strain on Associations where parking is limited. Civil Code 4515 does not afford members or residents with additional parking rights. That means that the existing parking rules and regulations apply to attendees of an event for assembly purposes. Once the guest spaces are all occupied, attendees must make arrangements to park elsewhere to avoid being cited and/or towed as provided in the Rules.  This should be made clear in any facility use agreement so advance arrangements for parking for their guests if necessary. Compliance by all attendees with the governing document provisions, not just its parking provisions, should be required by the rules and/or a facility use agreement for assembly-related events.
  6. Alcohol use: The Association may ban the use of alcohol at events for assembly purposes – even if alcohol is allowed at private events. Because procuring insurance cannot be required for those reserving facilities for assembly purposes, it is reasonable to ban alcohol or other activities which may increase legal exposure to the Association at these gatherings. Likewise, items such as sound equipment that may be used for private events can be withheld from assembly events with no deposit so long as this limitation is made clear in the facility use agreement and/or rules.
  7. Compliance with the governing documents. Members and residents and their guests using common areas must still comply with the provisions of the Association’s governing documents including as to noise levels, parking, cleaning up after service animals, etc. This can be made clear in a well-drafted facility use agreement.
  8. Reasonable hours: Holding a political rally does not give members and residents 24-hour access to the Association’s facilities or rights above members who request to use the facilities for their private events. Rules should be adopted that ensure all members have equal access to these facilities, including for private events, and that the events end at a reasonable time to ensure noise levels are not interrupting residents’ quiet enjoyment of their property.
  9. Designated Areas. Often, an Association’s clubhouse is near a pool or to other facilities and guests of the assembly event spill out into other areas not reserved for the event. A facility use agreement can require that the event must be contained within the reserved facility and that guests may not migrate beyond said designated area.

What is a Proper “Assembly” Purpose Under Civil Code 4515?  Most Associations are concerned about the potential abuse of this statute in the form of members reserving facilities without paying a fee stating it is for assembly purposes when it is really just a private event. Examples of qualified purposes of assembly are to discuss common interest living, association elections, legislation, election to public office, or any initiative, referendum, or recall process involving the Association or other political body. If the stated purpose for reserving a facility does not fall into one of these categories, then it is a private event.

Limitations on Canvassing and Petitioning. While Associations cannot restrict canvassing, petitioning, or the circulation of materials for political purposes, they can place reasonable restrictions on these activities such as requiring that it take place only during certain hours. This type of political speech often gives rise to complaints by members disturbed by such unsolicited campaigning and door-knocking, but the Association may not bar such free speech activities when done in a reasonable manner.

California HOA lawyers To implement reasonable and common-sense restrictions on political speech and assembly without violating Civil Code 4515, HOAs should have their legal counsel review their current rules and policies with respect to campaigning, solicitation and common area use and to prepare agreements concerning the use of common area facilities. Rules or policies which violate Civil Code 4515 subject the HOA to court action and fines.

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

Why-Civil-Monetary-Penalty-Insurance-is-Necessary-e1521502139118*Asked & Answered

Asked Is there any way to collect a fine other than going to court?

Answered – Monetary penalties (i.e., fines) are just one of the many tools in a homeowners association’s (“HOA’s”) arsenal to enforce its governing documents. They are primarily used to deter violations, as well as to compel compliance from a member, guest or tenant who is in violation. However, many HOAs find fines ineffective at deterring violations because of the difficulty in collecting the fines once levied.

Indeed, when a member fails to pay regular or special assessments levied by the HOA in a timely fashion, the HOA may record an assessment lien against the member’s separate interest to act as security for the payment of the assessment debt. The HOA then has the power to enforce the lien through, among other methods, foreclosure. Unfortunately, the HOA’s ability to collect delinquent assessments through foreclosure does not extend to the collection of fines:

A monetary penalty imposed by the association as a disciplinary measure for failure of a member to comply with the governing documents, except for the late payments, may not be characterized nor treated in the governing documents as an assessment that may become a lien against the member’s separate interest enforceable by the sale of the interest [through nonjudicial foreclosure].

(Cal. Civ. Code § 5725(b).)

Accordingly, an HOA is limited to the following methods to collect fines: (1) bring a lawsuit against the member (typically in small claims court unless the amount of the fine(s) exceed(s) the jurisdictional limits imposed under the California Code of Civil Procedure), or (2) wait until the member’s separate interest is sold and make a demand during escrow. Neither situation is ideal because of issues inherent with each.

For example, judicial action can be a costly and time-consuming endeavor. If the HOA prevails, debtors rarely pay judgments entered against them. Thus, it will take time (and money) to secure payment, either through a wage garnishment or bank levy. Moreover, failure to strictly adhere to the HOA’s Notice and Hearing procedure, along with its Enforcement Policy and Fine Schedule, will preclude the HOA from prevailing in an action to collect fines.

With respect to the latter option (wait until the member sells his or her separate interest), there is no guarantee that the debt will be satisfied through escrow. That is because the debt is not secured by the property. As a result, if the debt is not satisfied through escrow, the HOA will be forced to bring a lawsuit against the now-former member.

California HOA lawyers As noted above, the purpose of levying a fine against a member is to encourage compliance with the HOA’s governing documents. If the fine works (i.e., the member complies after being fined), the HOA should consider reversing the fine as its objective has been achieved. However, if the fine does not work (i.e., the member continues to violate the governing documents), the HOA should bring an action to enforce the governing documents. Through said action the HOA may seek to collect the fine(s), but its primary objective should be to secure compliance.

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

how-should-a-weak-leader-stand-up-against-butt-in-590b43b68caabHomeowners associations (“HOAs”) are governed by a group of volunteer members known as a “Board of Directors” (“Board”). Their primary responsibilities include: (1) managing the common areas, (2) managing the HOA’s finances, (3) setting policies to assist in the operation of the HOA, and (4) enforcing those policies along with the HOA’s governing documents. The Board is therefore vital to the effective operation and management of the HOA, as well as preserving the property values of the HOA’s members.

As indicated previously, one of the primary responsibilities of the Board is to enforce the governing documents. (See Posey v. Leavitt (1991) 229 Cal.App.3d 1236.) In fact, a majority of members purchase their units within the Association in reliance on the governing documents being consistently and faithfully enforced by the Board. However, that power may be abused in situations where a director uses his or her position to target and/or harass particular residents within the community. (See generally Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th 361, 383 (“Of course, when an association determines that a unit owner has violated a use restriction, the association must do so in good faith, not in an arbitrary or capricious manner, and its enforcement procedures must be fair and applied uniformly.”).) It is therefore important that the Board, and not any one individual Board member, take action to enforce the governing documents.

The foregoing is not to say that individual directors are precluded from observing and reporting violations. Indeed, a HOA necessarily relies on its members (including its Board members) to report instances where the governing documents may have been breached. Photographing the potential violation is not problematic to the extent that the photograph captures an area that may be observed from a lawful vantage point (e.g., the common area). However, upon observing/documenting a potential violation of the governing documents, the observing party must report that observation to the HOA’s community manager (“Manager”) so that same may initiate the procedures contained in the Association’s enforcement policy (“Policy”). Individual directors should never communicate directly or indirectly with residents concerning their ostensible violation(s) because doing so heightens the concerns referenced above.

Additionally, it is important to point out that the Manager is not acting on his or her own volition; rather, the Manager is executing the duties delegated to him or her by the Association. Therefore, the Manager is acting on behalf of, and at the direction of, the Association. This distinction is important because it underscores the fact that the action is being taken by the Association or at the Association’s direction, and not by any one individual.

In light of the foregoing, each Board member should employ the following procedure when observing a violation of the HOA’s governing documents:

  1. Any observed violation shall be reported to the Manager in writing and shall include any supporting information (e.g., a detailed description of the violation, photographs, etc.).
  2. Thereafter, the Manager, and not the observing Board member, must comply with the procedural requirements contained in the HOA’s Policy, which typically requires the preparation and mailing of a “courtesy notice” to the offending resident advising same of the alleged infraction.
  3. If the violation continues to occur, the Board should direct the Manager to prepare correspondence inviting the offending resident to a hearing before the Board.
  4. At the hearing, the Board may impose discipline pursuant to the Association’s governing documents.
  5. The observing Board member must not communicate with the offending resident at any point during the enforcement process (unless otherwise authorized by the Board).
California HOA lawyers The foregoing procedure emphasizes the fact that the HOA acting through the Board, and not any individual member of the Board, enforces the governing documents. Following this procedure will mitigate the Board members’, and by extension, the HOA’s, liability exposure.

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

dogparkdogsOne of the many benefits of living in a homeowners association (“HOA”) is the amenities provided to its residents. Common amenities include recreational rooms, pools, and fitness facilities. One amenity gaining in popularity is designated for the community’s canine companions: dog parks. Dog parks provide dogs with a designated off-leash area where they can run, exercise and play while minimizing damage to other common areas. However, having such an amenity could increase a HOA’s liability exposure, especially if the dog park is not designed properly and the HOA does not have rules and regulations governing the use of the dog park. Accordingly, the purpose of this article is to provide HOAs with best practices and guidance on adopting rules regulating the dog park.

Design

For HOAs contemplating the construction or installation of a dog park, or for those with pre-existing dog parks, the Board of Directors (“Board”) should consider the park’s design. One critical design aspect is the fence enclosing the dog park; the fence should be tall enough so that a large dog cannot jump over it. Additionally, the entrance into the dog park should be through a double-gate system. Such a system reduces the likelihood of a dog escaping. Finally, the HOA should also have two separate areas; one for larger dogs and one for smaller dogs. These are just a few of the design features a Board should consider when creating or modifying a dog park.

Rules

Most HOAs already have rules regulating the maintenance of pets within the community. However, if a HOA is considering installing a dog park, it should incorporate rules specific to the park. Moreover, those rules should be posted at all entrances to the park in a highly visible location.

Some rules to consider include the following:

  • Dogs are permitted to be off leash while in the dog park provided that they are able to respond to audible controls, such as whistling.
  • Dogs must be leashed upon exiting the dog park.
  • Dog owners shall remain in the dog park and shall maintain visual observation of their dog at all times.
  • Dogs must be current on all vaccinations.
  • Dogs with known violent propensities or aggressive behavior are prohibited from using the dog park. Any dog showing signs of aggression while in the dog park shall be removed immediately by the dog owner.
  • Owners shall pick up their dog’s waste. Waste must be put in a tightly sealed plastic bag before being disposed of.
  • Owners are required to fill any holes created by the owner’s dog.
California HOA lawyers Dog parks are a great amenity but can increase a HOA’s liability exposure. It is therefore important for the Board to engage legal counsel before beginning the process of constructing and installing a dog park to ensure that the HOA is protected.

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

Chained-Social-Media-Facebook-Twitter-YouTube-Regulations-Internet-900Like it or not, we live in the age of social media. It is undeniable and has dramatically transformed the way we communicate in every arena, including homeowners associations (“HOA”).  Information, opinions and images are broadcast and circulated at a rapid pace with little or no oversight involved.  These unfiltered transmissions over social media airwaves can have profound impacts on homeowners associations’ governance (board of directors), as well as its membership (homeowners).  Understanding the legal implications of social media use in the context of managed communities is critical to avoid conflicts, unexpected costs and legal battles.

In recent years, we have seen a myriad of lawsuits stemming from social media abuse:  In Tennessee, a homeowner faced legal action from her HOA for using the name of her subdivision on her personal Facebook neighborhood page.  In New York City, co-op residents aired their dirty laundry online, resulting in multiple lawsuits.  Elsewhere, a vacation-condominium owner sued a guest for $15,000 over negative social media comments.

It is not uncommon to find defamatory language being hurled at board members or management by disgruntled homeowners on online community forums, board members purporting to speak on behalf of the association on their personal Facebook pages, and association social media channels turning into de facto board meetings in violation of state law and governing document protocols.

These problems arise largely due to an inherent discord between the nature of social media and how community associations operate.  Association managed communities are highly regulated and restricted – indeed, their chief governing instrument is titled Covenants, Conditions and Restrictions (“CC&Rs”). To the contrary, social media regulation is grossly inadequate.  Simply put, people are free to share their thoughts and opinions without real consequences, which often leads to capricious communications.  However, people cannot do this in community associations. For instance, homeowners cannot blurt out opinions in board meetings – in fact, homeowners are often not even allowed to speak, unless given permission.

Unfortunately, the legal landscape has been quite slow to catch up with the problems associated with unbridled communication.  There are few, if any, state laws to govern the use of social media in the realm of corporate governance.  Moreover, developers who write the CC&Rs are focusing on issues like special assessments and architectural approval, not whether board treasurer Bob has the right to post his opinions on the clubhouse renovation on Twitter.

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3-5_aba_little_tots*New Legislation

Governor Newsome recently signed into law Senate Bill 234 (“SB 234“), also know as the “Keeping Kids Close to Home Act.”  The new law will take effect on January 1, 2020.  SB 234 permits large daycare homes, which provide care for up to 14 children at one time, to operate within HOA communities regardless of contrary language in their CC&Rs.  The purpose of SB 234 is to increase the availability of childcare for families across the state by making it easier for daycare homes to operate in residential neighborhoods.

“It is the intent of the Legislature that family daycare homes for children should be situated in normal residential surroundings so as to give children the home environment that is conducive to healthy and safe development. It is the public policy of this state to provide children in a family daycare home the same home environment as provided in a traditional home setting.”

The California legislature previously declared that small daycare homes (those providing care for up to 8 children) were immune from HOA restrictions, like those against commercial use. (See H&S Code, section 1597.40(c).)  Prior to SB 234, local governments could decide whether to classify large daycare homes like small daycare homes or to subject the large daycare operators to additional restrictions and requirements.

In effect, SB 234 voids CC&R provisions that prohibit Owners from utilizing their properties as large daycare homes, so long as those Owners follow the necessary state licensing requirements and provide care for no more than 14 children.  The bill also informs those wishing to open daycare homes that remedies are available if the local governments or HOAs discriminate against them.

HOAs across the state should be aware that Owners have the right to open large daycare homes within the community, regardless of restrictions against commercial use or for single family use.  However, the new law does not allow Owners to violate other CC&R restrictions, like those prohibiting noise nuisances.

California HOA lawyers HOAs should always consult with their legal counsel when responding to Owners’ requests to open daycare homes within the communities in order to ensure compliance with the new state law and their CC&Rs.

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

no-kids-allowed*Asked & Answered

Asked – Our Association is seeking legal guidance regarding children playing in the common areas and driveways. Several homeowners have complained about the number of children playing without supervision.  Drivers report their concern for the children’s safety as there have been several reports of children almost hurt. The Board would like to know if they have the authority to restrict children from playing in the common areas and/or driveways? 

Answered – The short answer is that the Association would be exposing itself to a risk of liability under federal and state anti-discrimination laws by adopting a rule or policy that outright prohibited children from playing in the common areas; including the streets and driveways. This risk would extend to other rules that specifically apply to children only, as opposed to all members/residents of the community.    

Generally, an association should proceed with caution when attempting to create and/or enforce rules that specifically apply to children. Federal and state law provides that it is unlawful to limit the use of privileges, services, or facilities associated with a dwelling because of familial status (the law also recognizes other protected classes including those based on race, color, national origin, religion, sex, and disability). Familial status is generally defined as having one or more individuals under 18 years of age who reside with a parent or with another person with care and legal custody of that individual. The effect of association rules based on familial status is that families with children, and those children, are treated differently and less favorably than households comprised solely of adults.

Federal courts have found that an association engages in actionable discrimination when rules specifically target children without sufficient justification. For example, rules that restrict only children from the benefits and privileges of common areas or amenities (such as pools, parkways, streets, etc.) have been struck down as impermissible restrictions against a protected class; namely familial status.

An association pool rule that restricts children under the age of 16 from using the pool without adult supervision would be an example of an impermissible rule. An association may argue that such a rule is intended to protect children. However, it would be easy to demonstrate that many children that fall under the scope of the rule are far more proficient swimmers than many adults (e.g. junior lifeguards). However, a rule that prohibits children under 5 from using the common area spa without adult supervision would likely fare better if a legal challenge was brought because there is a clear and identifiable safety risk with children under 5, regardless of swimming proficiency. Specific adult-only swim hours would be another example of an impermissible rule.

To avoid the risk of a discrimination claim, associations should strive to craft and enforce rules that apply equally to all members and residents within a community. Facially neutral rules of general applicability are far more likely to withstand judicial scrutiny. Alternatively, if an association has a legitimate and compelling justification for a rule that only applies to children (or other protected class), the rule must be the least restrictive means to accomplish the identified goal. This is a high burden to meet, so counsel should be consulted to avoid unnecessary and costly issues down the road.

California HOA lawyers Associations should be aware that creating and/or enforcing rules that apply only to children (and other protected classes such as race, color, national origin, religion, sex, or disability) exposes an association to federal and state discrimination claims. Associations seeking to address legitimate concerns or issues, such as children’s safety, should work with counsel to create enforceable rules that steer clear of potential discrimination against protected classes.

-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.

16106042-10158060050850114-2869680242197711700-n-1484846578*New Legislation

On July 30, 2019, SB 652 was signed into law by Governor Gavin Newsome in response to several incidents in which a homeowner’s association (HOA) asked a resident to remove a mezuzah from their unit’s entry door or doorframe.  A mezuzah is a small scroll that is affixed to the doorframe of Jewish homes to fulfill the mitzvah (Biblical commandment).  For observant Jews, this is not a choice, but rather, a religious duty.  Attempts to bar them from fulfilling this duty violated their religious freedom, argued Jewish residents.

In Connecticut, an HOA threatened to fine a resident fifty ($50) dollars if she did not remove the mezuzah affixed to her doorframe.  The HOA permitted religious displays (e.g. Christmas wreaths) on doors, but restricted any adornments from being placed on exterior walls.  The HOA argued that doorframes are considered exterior walls.

In Florida, an HOA ordered a resident to remove a mezuzah, citing its bylaws prohibiting owners and occupants from attaching, hanging, affixing or displaying anything on the exterior walls, doors, balconies, railings and windows of the building.

In New York, an HOA fined a resident fifty ($50) dollars for affixing a mezuzah to her doorframe shortly after she moved in.  The HOA cited its bylaws prohibiting residents from altering the exterior of their home without approval from the Association.  The rule included affixing of signs, advertisements or statuary.

While there were only a handful of instances nationwide in which a resident was asked to remove a mezuzah, the bill was designed to have a broader scope in protecting any displays of religious items on doors and doorframes so long as the display reflects “sincerely held religious beliefs.”  Specifically, SB 652 prohibits a “property owner” (defined to mean an HOA, an HOA board, or landlord) from adopting or enforcing any rule that prohibits the display of one or more “religious items” on an entry door or doorframe.  The bill defines “religious item” to mean any item displayed “because of sincerely held religious beliefs.”  The bill also identifies reasonable exceptions, such as allowing an HOA or landlord to prohibit the display of anything that threatens public health or safety, violates existing law, contains obscenities, hinders the opening or closing of any entry door, or is larger than 36” by 12” inches.  Also, an HOA may require a separate interest owner to remove a religious item as necessary to perform maintenance on a door or doorframe.

Prior to SB 562, federal and state law provided some protections against religious discrimination in housing, but the author of the bill believed that these protections were not sufficient enough to protect the display of religious items.   For example, the federal Fair Housing Act (FHA) prohibits housing discrimination on the basis of religion.  Likewise, the state Fair Employment and Housing Act (FEHA) makes it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the religion of that person. (Gov. Code § 12955.)  The Davis-Stirling Act, which regulates homeowner’s associations and common interest developments, contains a provision that prohibits the HOA governing documents from prohibiting the posting or displaying of noncommercial signs, posters, flags, banners, on or in an owner’s separate interest, subject to certain exceptions.  (Civil Code § 4710.)  To the extent that a “religious item” is a sign, poster, flag, or banner, one could argue that existing law already prohibits an HOA from adopting or enforcing any rule that bans the display of religious items.  But arguably there is a question of whether a mezuzah or cross hung from a door is a “sign.”  SB 562 eliminates that ambiguity by protecting any “item” which is displayed because of a sincere religious belief, whether or not it is a “sign.”

SB 652, which takes effect January 1, 2020, will likely conflict with many HOA policies, which have aesthetic and architectural rules that bar hanging anything on an entry doorframe.  According to the author of the bill, such restrictions from HOAs leave the affected people unable to freely practice their religious obligations and in some instances are forced to leave their residence and seek another place to live.  By passing this bill, California’s legislature has followed the recent trend in caselaw suggesting that the religious freedom of individuals should take precedence over the communal interests of homeowner’s associations.

California HOA lawyers Notwithstanding, it is important to note that the right afforded to HOA members and tenants in this bill is extremely limited, only applying to a “religious item” and, even then, only when the item is posted on an entry door or doorframe.  For instance, the bill would not provide protection to an owner who wanted to post a similarly-sized religious item in a window, or a door other than an “entry” door.   

-Blog post authored by TLG Attorney, Reuben D. Kim, Esq.

residential-packageAs security technology becomes less expensive and more accessible to average consumers, homeowners are provided with an exponential increase in available options for exterior security devices. A cursory Amazon search reveals hundreds of such devices including motion sensor lights and home camera offerings that can be accessed remotely from the convenience of one’s smart phone. Given the benefits and low cost, many homeowners have installed security systems in and around their residences to mitigate the risk of theft, property damage, and other criminal activity. As purchases and installations of these devices increase, associations and architectural committees are increasingly confronted with the conflict between the owners’ interest in safety and security, and the association’s interest in uniform aesthetics and neighborhood privacy.

Association Regulation and Liability

Most common interest developments are structured and organized where the association maintains the residence/building exteriors and has the ability to regulate improvements attached and/or integrally related to them. This authority generally includes the ability to approve or deny owner applications to install exterior security devices. Some associations with strict architectural approval procedures may be inclined to significantly limit or outright reject owner installed exterior security devices. However, this approach can expose an association to potential liability, especially where there is a demonstrated need for such devices.

In the case of Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, the California Supreme Court held that a homeowners association stands in relation to owners as a landlord and can be liable for breaches of traditional landlord duties such as failing to address unreasonable risks of criminal activity. The Court found that there was ample evidence to place the association on notice of an unreasonable risk to the plaintiff’s safety, and the failure to act or to allow the owner a self-help remedy subjected the association to liability.

In light of the holding in Frances T., associations should avoid outright prohibitions on owner installed exterior security devices. Instead, associations should develop and implement a comprehensive policy that governs the application, approval, and installation process for such devices. Such a policy allows the association to control the aesthetic characteristics, installation locations, and fields of view (for cameras) necessary to preserve the aesthetic appearance of the community, while preventing the devices from intruding into the seclusion of other residences and infringing privacy rights.

Exterior Security Device Policy

When developing an exterior security device policy, one of the primary considerations should be to limit the risk of invading the privacy of other residences. Generally, there is no recognized right of privacy in common areas. However, California acknowledges that privacy interests can be infringed through devices that provide a technological intrusion from otherwise lawful vantage points. Civil Code section 1708.8(b) states in pertinent part:

A person is liable for constructive invasion of privacy when the person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image . . . or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image . . . or other physical impression could not have been achieved without a trespass unless the device was used.

Under the guidance of the foregoing prohibition against such privacy infringement, any approval of exterior security devices should be focused on ensuring that the primary purpose of the device is to advance the security interests of the applicant owner, and the device does not present an unreasonable risk of privacy invasion to other residences.

To limit the risk of privacy intrusions, a security device policy should contemplate the following requirements:

    1. An installation plot plan/map should be submitted by the applicant to indicate the intended installation locations and their corresponding fields of view for any visual recording devices such as cameras.
    2. Such fields of view should not be permitted to observe neighboring residences, exclusive use, or common areas. Depending on the development/community layout, some installations may not be possible without capturing some of the foregoing areas (such as a doorbell camera that points towards common area). The association body tasked with the review and approval of security device installations should ensure that in such cases, the primary purpose is to advance the security interests of the applicant and that any common area field of view is merely incidental and as limited as possible.
    3. Cameras must be “fixed view”, without panning capabilities.
    4. Finally, any approved installations should be revocable if the device violates the privacy of neighboring residences so as to constitute a nuisance.
California HOA lawyers Given the limitless permutations of common interest developments and their various layouts, there is no one size fits all approach to resolving the complex issues surrounding owner installation of exterior security devices. As such, consult with legal counsel to develop workable solutions to advance the association’s interests, while preserving the owners’ interest in security and privacy.

-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.

Neighbor-Disputes-8-Smart-Tips-to-Legally-Deal-with-Nuisance-Caused-by-Nasty-Neighbors*Unpublished Opinion

The Court of Appeals recently rendered an unpublished opinion in  Harbour Island Condominium Owners Association, Inc. v. Alexander (2019), which provides some clarity regarding a tenant’s right to attend board meetings and the ban on noxious activities within the community.

The Harbour Island Condominium Owners Association (“HOA”) sought a restraining order (known as a preliminary injunction) against two tenants and their landlord to abate the tenants’ noxious behavior.  The HOA relied on the provision in the CC&R’s, which stated that residents cannot disturb the neighborhood or occupants of a neighboring property or create a nuisance.

Neighboring residents made several complaints to the HOA about the tenants’ excessive and purposeful noise: the tenants consistently stomped on their floors and slammed their doors.  In addition to the noise complaints, tenants permitted their dog to urinate in the Common Area, despite the posted “No Dogs” signs.  Lastly, the tenants engaged in aggressive behavior against the Board of Directors in an apparent attempt to intimidate Board Members.  For example, the tenants secretly photographed a Board Member at the pool on different occasions.

The trial court granted the preliminary injunction, ordering the tenants and their landlord to install throw rugs throughout the unit and a sound-muffling device on the doors; to cease photographing Board Members; and to prevent their dog from urinating on the Common Area.  The trial court ruled in favor of the HOA because the tenants’ noxious behavior unfairly oppressed the rest of the community, while the ordered corrective measures were minimally oppressive to the tenants.

The Court of Appeals upheld the trial court’s decision.  Despite the fact that the HOA’s nuisance provision did not mention dogs, the Court broadly interpreted the existing provision to encompass the exclusion of dogs from the Common Area for health and safety reasons.

Furthermore, the Court held that the nuisance provision bans acoustic nuisances that interfere with a neighbor’s right to quiet enjoyment.  In this case, the nuisance claims were supported by credible witness testimony that the tenants’ noise was excessive.

Lastly, the Court of Appeals disagreed with the tenants that their due process rights had been violated since the tenants were not permitted to challenge the violation notices at hearings.  The Court held that only Owners with vested property rights are Members of the HOA.  As such, only Members may participate in HOA meetings.

California HOA lawyers The Harbour Island case highlights the broad reach of nuisance provisions in CC&Rs and serves as a reminder that Owners, not tenants, have the right to attend and participate in HOA meetings. 

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