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Articles Posted in Rules & Regulations

familyOn January 20, 2015, a tragic fire ripped through a condominium complex in the city of San Juan Capistrano, killing three, injuring six, and displacing eighty residents living in eight units.  The decedents were three of seventeen individuals living in a four-bedroom condominium.  In light of the deaths and their relation to the number of occupants living in the unit, efforts are now underway to examine state and local occupancy restrictions with an eye towards preventing an incident like this from occurring in the future.  To that end, questions have surfaced with respect to an association’s ability to adopt and enforce state and local occupancy standards, as well as to promulgate operating rules regulating the number of occupants living within a unit.

An association’s “operating rules” are regulations adopted by the board that apply “generally to the management  and  operation  of the  common  interest  development  or the conduct  of the business and affairs of the association.” (Civ. Code § 4340(a)) They relate to things such as the use of common area and separate interests, member discipline, and procedures for elections. (Civ. Code § 4355(a)(1)-(7))  In order to be valid and enforceable, the operating rule must meet several requirements: the rule must be (1) in writing, (2) within the authority of the Board of Directors conferred by law or the governing documents, (3) not in conflict with governing law and the governing documents, (4) adopted in good faith and in compliance with the procedural requirements set forth in Civil Code section 4360, and (5) reasonable. (Civ. Code § 4350) Accordingly, presuming that an occupancy rule is adopted by an association’s board of directors pursuant to the powers granted to it under the governing documents, the primary focus is whether the occupancy rule conflicts with governing law (i.e., California law).

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hoa-pet-restrictionOne problem that arises in the context of enforcing homeowners association (“HOA”) governing documents pertains to how consistently certain use restrictions in the governing documents are enforced over time. For example, if a HOA has historically failed to enforce a particular restriction, a decision to enforce that restriction against a particular owner may subject the HOA to claims of “selective enforcement” and/or that the HOA’s enforcements efforts are being exercised in an arbitrary and capricious fashion. These claims not only hinder the cost-efficient resolution of disputes, but could significantly undermine the HOA’s enforcement authority.

It is therefore difficult for a HOA’s Board of Directors to modify the HOA’s enforcement policies over time, especially when it desires to enforce a use restriction that was either never enforced or enforced inconsistently by the HOA in the past. However, the recent unpublished opinion in The Villas in Whispering Palms v. Tempkin (Cal. App. 2015) 2015 WL 2395151 (“Villas”) demonstrates that this difficulty may be overcome through providing proper notice to the HOA’s members and through enforcing the restriction consistently thereafter…

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*New Case Lawhoa-renter-fee.jpg

In the landmark case of Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249 (“Lamden“), the California Supreme Court established what is known as the “Rule of Judicial Deference” or “Lamden Rule” that, in sum, requires courts to defer to decisions made by a HOA’s Board of Directors regarding “ordinary maintenance:”

“…We adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association’s corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors.” (Lamden, at 253.)

However, in a recently published opinion, the Court of Appeals expanded the scope of the Lamden Rule to include additional decisions made by a HOA’s Board, such as those to adopt rules and impose fees on members relating to short-term renters…

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*New Case Lawhoa-condo-hardwood-flooring.jpg

Homeowners within condominium developments are typically granted broad authority in making improvements to the interior of their respective Units that do not require modification of association common area. However, because of the way in which condominium projects are built, certain improvements made within a Unit may ultimately impact the quiet use and enjoyment of neighboring homeowners (i.e., sound transmissions from hardwood or hard surface flooring). As indicated by the recent case of Ryland Mews Homeowners Association v. Munoz (2015) 234 Cal.App.4th 705 (“Ryland“), to the extent that a homeowner’s interior improvements result in a nuisance to neighboring homeowners, an association does have the authority to compel the homeowner to modify or remove the improvements as necessary to abate the nuisance…

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hoa-garden-rats.jpg*Asked & Answered

Asked – Fallen and decayed vegetables from a homeowner’s garden are attracting numerous rats and other pests. With the new law permitting personal food gardens, is there anything our HOA can do to address this issue?

Answered – Probably. AB 2561, effective January 1, 2015, added Section 1940.10 and 4750 to the Civil Code. In sum, Section 4750 grants homeowners within HOAs the right to use their backyards for “personal agriculture,” regardless of any provisions contained in a HOA’s governing documents to the contrary. However, that right is not absolute. HOAs still have some authority to restrict and regulate personal food gardens in the following respects:

  • Personal Use/Donation Only – The crops must be grown for personal use or donation. Crops grown for sale or other commercial purposes do not fall within the definition of “personal agriculture” for the purposes of Section 4750.
  • No Marijuana or Unlawful Substances – There is no right for a homeowner to grow “marijuana or any unlawful crops or substances,” as those items do not constitute a “plant crop” permitted by Section 4750.
  • Only on Owner Property or Exclusive Use Common Area – The right to keep and maintain personal food gardens extends only to the owner’s backyard or areas designated for the exclusive use of the homeowner (i.e., exclusive use common area patios), not general HOA common areas.
  • Reasonable Restrictions Permitted – The HOA may still impose “reasonable restrictions” on the use/maintenance of homeowner’s yard for personal agriculture. “Reasonable restrictions” are those that “do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.”
  • Clearance of Dead Plant Materials and Weeds – Section 4750 still allows for HOAs to apply rules and regulations requiring that “dead plant material and weeds, with the exception of straw, mulch, compost and other organic materials” that encourage vegetation and soil moisture retention, be regularly cleared from the backyard. A rule or regulation requiring such clearance may be successful in resolving your rodent and pest problem.

As indicated above, the right to have a personal food garden would not necessarily insulate a homeowner from his obligation to comply with related provisions of a HOA’s governing documents that serve as “reasonable restrictions” on the use of a yard for personal agriculture. For example, virtually every set of CC&Rs contains a provision prohibiting homeowner from conducting any activity on their property that poses a nuisance to neighboring homeowners. If the way in which a homeowner’s food garden is being maintained is resulting in a nuisance (i.e., attracting rats and other pest populations), the nuisance provision would likely constitute a “reasonable restriction” that the HOA may enforce against the homeowner.

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In addition to the issues noted above, HOAs may, in some instances, have the authority to restrict food gardens that violate other provisions of the Association’s governing documents that serve as “reasonable restrictions” allowable under Section 4750 (i.e., a height limitation within the HOA’s landscaping standards may serve to prohibit crops that grow to unreasonable heights). HOA Boards that are encountering problems with food gardens should consult with their legal counsel for guidance as to how their governing documents may be tailored to address these types of issues.

To submit questions to the HOA attorneys at Tinnelly Law Group, click here.

low-water-plants-HOA.jpg*New Legislation

We have previously blogged about several bills being considered by the California Legislature relating to drought relief. Among them was AB2104 (Gonzales), which has now been signed by Governor Brown and will take effect January 1, 2015. In sum, AB2104 will expand upon the limitations placed upon Homeowners Associations (“HOAs”) in their efforts to regulate “low water-using plants,” as well as incorporate an Executive Order signed by Governor Brown in April of 2014 that prohibits HOAs from fining homeowners for reducing/eliminating the watering of lawns during declared drought periods.

Section 4735 of the California Civil Code previously stated that any provision of a HOA’s governing documents is void and unenforceable to the extent that it “prohibits, or includes conditions that have the effect of prohibiting, the use of law-water using plants as a group.” AB2104 will expand on this language by also voiding any governing document provision (including those contained in a HOA’s architectural or landscaping guidelines) that “prohibits, or includes conditions that have the effect of prohibiting, the use of low-water using plants as a group or as a replacement for existing turf.” (Emphasis added.) Additionally, the inability for HOAs to fine homeowners for failing to adequately water vegetation or lawns during state or local government-declared drought periods will be codified under new subpart (c) to Section 4735.

To read the chaptered text of AB2104 and the portions of Section 4735 which will be amended, click here.

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In the wake of AB2104, questions have surfaced regarding the extent to which HOA’s may still restrict or prohibit the installation of artificial turf. We have previously blogged about this issue, and how artificial turf likely does not constitute a “plant” within the meaning of Section 4735. Additionally, bills which have been proposed by the California Legislature in the past to require HOAs to permit the installation of artificial turf have been vetoed by California governors and ultimately never made it into law. It is unlikely that AB2104 addresses this issue or will otherwise limit the authority of HOAs to regulate or restrict the installation of artificial turf within their communities.

hoa-scooters2.jpg*Asked & Answered

Asked – We have continued problems with unruly, unsupervised, and destructive children in our community’s common areas. They ride motorized scooters, skateboards, bikes, etc. all throughout our walkways and have collided with people and animals on several occasions. Our property manager said that nothing can be done because any rules aimed at restricting such conduct would be “discriminatory” against children. What are our HOA’s options?

Answered – It is true that Federal and California courts have applied anti-discrimination laws, such as the Fair Housing Act, to homeowners associations (HOAs) in order to prohibit them from discriminating against families with children. There are exceptions, however, in instances where a seemingly discriminatory policy/rule is designed to address legitimate health or safety concerns. Thus, for example, the HOA should be able to adopt a set of operating rules restricting scooters, skateboarding, bicycling etc. in certain common areas where those activities represent a significant threat of personal injury or property damage. Provided that those rules do not single out “children,” but instead apply to all persons in the community, they would likely be deemed reasonable and enforceable pursuant to Civil Code Section 4350.

Additionally, most sets of CC&Rs contain provisions restricting acts which constitute a nuisance. Thus, even in the absence of specific operating rules of the type referenced above, your HOA may still have the ability to address the activities at issue through enforcement of the nuisance provision contained in its CC&Rs.

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Your HOA’s Board of Directors should evaluate the situation and determine if there are legitimate health and safety concerns resulting from the activities and/or if those activities are resulting in a violation of the nuisance provision contained in the CC&Rs. If the Board makes a good faith determination that the HOA should take action, it should consult with the HOA’s attorney for guidance as to what enforcement options are available, and how the HOA may adopt or modify its operating rules to restrict specific activities in the common areas.

Blog post authored by TLG attorney, Terri Morris.

To submit questions to the HOA attorneys at Tinnelly Law Group, click here.

hoa-gateAn easement provides an individual with the legal right to a specific and definable use of another’s property. A homeowners association’s (“HOA’s”) governing documents (i.e., “CC&Rs”) often provide numerous easement rights to its members for access and use of the HOA’s common areas and recreational facilities. While those easement rights are reserved for the benefit of the HOA’s members, their guests and tenants residing in the HOA’s development, it is not uncommon for non-residents and general members of the public to utilize HOA common area facilities such as walkways, trails and parks. HOAs may run into issues when trying to exclude non-residents from those areas, and may be reluctant to take more formal measures needed to do so (i.e., the installation of controlled access gates, the use of security personnel, etc.).

However, if a HOA fails to take such measures and fails to actively prohibit non-residents from accessing the HOA’s common area facilities, the open and consistent use of those facilities by non-residents may ultimately result in the creation of “prescriptive” easement rights for those non-residents. In the recent unpublished decision in Applegate Properties, Inc. v. Coronado Cays Homeowners Association (“Applegate“), the California Court of Appeals held that such prescriptive easement rights had been created over the common area of the Coronado Cays Homeowners Association (“Association”).

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electronic-cigs.jpgThe popularity of electronic cigarettes (“E-Cigs”) has increased in recent years. In light of unknown health risks, many state and local governments are passing laws restricting the sale and use of E-Cigs. Homeowners Associations (“HOAs”) are following this trend and adopting rules prohibiting their use in common areas.

Questions have surfaced regarding the extent to which a HOA’s operating rules that already prohibit smoking in certain areas may be applied to restrict E-Cig use as well. Most sets of operating rules do not explicitly define “smoking.” Additionally, while the California Legislature is attempting to include E-cigs under the traditional restrictions applicable to cigarettes, no statute has been enacted that does so.

HOAs that desire to treat E-Cigs the same as traditional tobacco smoking products should amend their operating rules accordingly. Such action may be done at the Board’s discretion, pursuant to the rule change procedures required under Civil Code Section 4360 (i.e., provide general notice of the proposed rule change at least thirty (30) days before making the rule change, the decision on the rule change must be made at a board meeting, and after the decision is made, general notice of the rule change must be provided to the members within fifteen (15) days). However, prohibiting E-Cig use in the interior of the members’ separate interests (i.e., not just in the common areas or exclusive use common areas) may require a formal amendment to the HOA’s CC&Rs rather than a mere change to its operating rules.

hoa laws

In light of the trend of state and local governments, as well as the unresolved questions concerning the health impacts of E-Cigs, operating rules that prohibit or restrict E-Cig use in common areas would likely be deemed “reasonable,” and thus valid and enforceable. Additionally, HOA boards and management professionals should not disregard complaints from members regarding E-Cig “vapor” transmission, as we have blogged previously about how disregarding complaints dealing with second-hand smoke transmission can expose a HOA and its management company to substantial liability. In the presence of such complaints, a HOA should consult with its legal counsel for guidance.

Blog post authored by TLG attorneys Matt Plaxton and Steve Tinnelly.

eviction-hoa.jpg*Asked & Answered

Asked – A renter/tenant within our community is continually engaging in improper conduct, violating the governing documents, and causing nuisances that are impacting surrounding homeowners. Is there anything the HOA can do to evict the tenant? What steps can the Board of Directors take to prevent situations like this from happening in the future?

Answered – Improper conduct of tenants is a problematic situation commonly faced by homeowners associations (“HOAs”). Tenants often are not as involved in the affairs of the HOA as that of the HOA’s members, nor do tenants feel the same sense of investment in the community. Additionally, members who rent out their homes typically prioritize rental income over the concerns of neighboring homeowners.

The degree to which a HOA may take action directly against an unruly tenant will be principally governed by the HOA’s governing documents–specifically, the HOA’s recorded declaration of covenants, conditions and restrictions (a.k.a. “CC&Rs”). The restrictions in the CC&Rs are “equitable servitudes” that are enforceable against the owners of the “separate interests” within the HOA (the HOA’s members). Civ. Code § 5975. CC&Rs may contain provisions requiring tenants to comply with the HOA’s governing documents. However, those provisions essentially confer obligations upon the members to control the conduct of their respective tenants. Therefore, any remedies available to the HOA in response to tenant violations or nuisance activities must generally be pursued through action against the tenant’s landlord (the HOA member), not the tenant.

However, there are ways in which a HOA may broaden its ability to take action directly against a tenant. For example, a HOA can amend its CC&Rs to require any leases between a member and a third-party tenant to contain language which: (1) requires the tenant to comply with the governing documents, (2) grants the HOA the authority to take action directly against the tenant in response to violations, and (3) holds the landlord-member responsible for the HOA’s attorneys’ fees and costs incurred in taking such action. Such language would make the HOA a “third-party beneficiary” under the lease with the contractual right to enforce its terms through an eviction action or otherwise. Such language will also motivate members seeking to rent out their homes to secure higher-quality tenants at the outset.

hoa laws

In the absence of such language, the HOA should take formal action directly against the tenant’s landlord (the HOA member). Faced with the threat of fines and costly legal action, the member will likely realize that his/her financial interests are better served through securing a different tenant. A HOA dealing with unruly tenants should therefore seek the assistance of its legal counsel to determine the best course of action.

To submit questions to the HOA attorneys at Tinnelly Law Group, click here.