Rules & Regulations

The Basics of AB 805: Overview of Changes in Davis-Stirling Act

Published on: January 2, 2013 | by Steven J. Tinnelly, Esq.

hoa law firm *New Library Article

AB 805, effective January 1, 2014, will make existing California law pertaining to Homeowners Associations (“HOAs”) more logical and user-friendly. The bill’s primary effect is (1) to renumber and reorganize the Davis-Stirling Common Interest Development Act (“the Act”), and (2) to make various minor changes to the substantive content the Act. Other than renumbering of the Act from Sections 1350-1378 of the Civil Code to Sections 4000-6150, the bill reorganizes the Act in a more logical manner. It also standardizes terminology, eliminates outdated references to other authorities, groups provisions pertaining to the same subject matter, and reorganizes longer sections into more convenient subparts. While most of the Act’s content will remain the same, this blog post provides an overview of what substantive changes will go into effect as of January 1, 2014.

Our HOA lawyers have also published this information in our new library article entitled “The Basics of AB 805,” available for download from our library.

HOA Parking Rules Versus Handicap Parking Placards?

Published on: October 30, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered hoa law firm

Asked – My HOA requires a parking decal to park in the community. Is my HOA allowed to enforce its parking rules on vehicles with handicap parking placards that are parked within designated parking areas, but are without the HOA required parking decal?

Answered – Yes. Typically, homeowners association (“HOA”) governing documents (e.g., “CC&Rs,” “Rules & Regulations”) contain provisions governing how vehicles may be parked in the common area streets or parking spaces. In the event that a parking violation occurs, the HOA has the authority to enforce disciplinary measures against the violating individuals in accordance with the applicable enforcement procedures set forth in the HOA’s governing documents. Although California Vehicle Code §22511.5 permits individuals with appropriate handicap placards to park in handicap spaces, those individuals must still comply with all other HOA parking rules. Individuals generally may not, therefore, circumvent the requirements of an HOA’s parking rules through the use of handicap placards or plates.

Upon receiving a proper request, a HOA may be required to make “reasonable accommodations” for disabled individuals by designating additional parking spaces as handicap parking spaces. If your HOA has received such a request, the issue should be directed to your HOA’s legal counsel for guidance.

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

Installing a HOA Dog Park in the Common Area?

Published on: October 8, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – The HOA I manage is considering fencing off a portion of its common area to create a “Dog Park” for the residents to use? Can the HOA do this?

Answered – Maybe. However, our attorneys would strongly discourage the HOA from moving forward with the Dog Park based primarily on the following reasons:

1. Potential Conflict with the HOA’s Governing Documents: The HOA CC&Rs and/or Rules & Regulations may prohibit off-leash pets in common areas. An amendment to the CC&Rs and/or modification of the Rules & Regulations may thus be required so as to resolve any conflicts. While a modification to the Rules & Regulations is fairly easy to accomplish, amending the CC&Rs is often difficult–notwithstanding the expense the HOA will have to incur in the process. Additionally, HOAs are typically prohibited from maintaining anything in the community which serves as a nuisance to the HOA’s residents and guests (e.g., barking dogs).

2. Liability Exposure for the Association: There are many foreseeable circumstances where the HOA would be exposed to liability as a result of the Dog Park. It is not uncommon for dogs and people to be injured while using these types of parks. Having owners merely sign a waiver is not sufficient to completely insulate the HOA from liability–especially considering the likelihood that neighboring, non-HOA residents may try to use the Dog Park.

3. Insurance Concerns: The HOA’s insurance policy may not provide coverage for the Dog Park. Even if coverage is available, our communications with leading HOA insurance professionals echo the liability issues discussed above. Extending coverage to the Dog Park will likely cause an increase in the HOA’s insurance premiums. Moreover, any claims that are subsequently filed as a result of the Dog Park may cause those premiums to skyrocket. The most common Dog Park related claims are those where a dog knocks a person to the ground and causes injury.

It is easy to understand why HOA Boards would desire to install such an attractive and endearing amenity–especially if you are a dog lover like the HOA attorneys and staff in our office. However, installing a Dog Park in a community that was not originally developed with one is likely not a good idea. HOA Boards should consult with their legal counsel to determine what additional issues should be considered in determining whether to move forward with the park.

Fining Homeowners for not Completing HOA Surveys?

Published on: July 13, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered california hoa lawyers

Asked – May our HOA impose fines on homeowners who fail to complete HOA surveys?

Answered – Probably not. In general, a homeowners association (HOA) does have the authority to impose reasonable fines to deter violations of the HOA’s governing documents, as well as any rules and regulations validly adopted by the HOA’s Board of Directors. Liebler v. Point Loma Tennis Club (1995). Even assuming that the survey requirement itself is a reasonable, valid rule adopted by your HOA Board in accordance with the requirements contained in its governing documents and Civil Code §1357.110, fining homeowners for failing to complete the survey is likely to be deemed an unreasonable exercise of the HOA’s authority.

The HOA’s authority to impose fines is premised upon (1) deterring behavior which may damage the interests of the HOA and its members, or (2) reimbursing the HOA for costs it will incur as a result of violations. A homeowner’s failure to complete an informational survey will rarely, if ever, implicate such concerns.

The imposition of disciplinary measures such as fines is often crucial to the success of a HOA’s enforcement efforts. However, the authority to impose fines is not absolute–HOA Boards must comply with the procedural requirements set forth both in their governing documents and the California Civil Code, and furthermore must ensure that the fines at issue are justifiable and reasonable under the circumstances.

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

HOA Hosted Public Events: ADA Compliance Required?

Published on: July 2, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Does hosting a public bingo game at our association’s clubhouse expose the association to any liability under the Americans with Disabilities Act?

Answered -Yes, a homeowners association (“HOA”) that hosts public events at its facilities will need to comply with the rules and regulations of the Americans with Disabilities Act (“ADA”).

Access to HOA clubhouses and other facilities is typically limited to HOA members and their guests. Because limiting access in this respect maintains the private character of a HOA’s facilities, HOAs are generally not considered to be operating places of “public accommodation” within the meaning of the ADA and are therefore not legally obligated to comply with the ADA’s requirements. We have recently published a resource entitled “Disabled Residents and the Law” which addresses this very issue.

However, if your HOA has been granted permission by the California Gambling Control Commission to host a bingo game night at your clubhouse, then, among other regulations, the bingo game must be held open to members of the public. In such a situation, the HOA would be operating a place of public accommodation subject to the ADA’s regulations. Therefore, to the extent that the HOA’s facilities are not ADA compliant, the HOA may be exposing itself to unforeseen liability.

A HOA which is considering or is already hosting public events at its facilities should consult its legal counsel to determine whether the HOA is exposing itself to unforeseen liability.

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

HOA Accommodations for Disabled Residents

Published on: May 1, 2012 | by Steven J. Tinnelly, Esq.

homeowners_association *New Resource

Various laws have been established to protect the rights of disabled individuals, such as the Americans with Disabilities Act (“ADA”) and the Federal Fair Housing Act (“FFHA”). These laws govern both public and private facilities, and set forth the degree to which an entity, such as a homeowners association (“HOA”), is responsible for making modifications or improvements to accommodate individuals with disabilities. This blog post is in response to recent client inquiries relating to this issue; it addresses the applicability of each of these laws to HOAs and sheds some light on the potential issues that HOA Boards and Managers should be aware of.

Our HOA lawyers have also published this information in our new resource entitled “Disabled Residents and the Law,” available for download from our library.

HOA Obligation to Combat Nuisances?

Published on: April 18, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered hoa attorney

Asked – In response to a complaint by a homeowner that her noisy neighbor is causing a nuisance, is her homeowners association obligated to take legal action to remedy the problem?

Answered – Maybe. A homeowners association’s (HOA’s) governing documents often contain use restrictions which prohibit homeowners from conducting activities that unreasonably interfere with other homeowners’ use and enjoyment of their units. However, HOA Boards are granted discretion in determining whether they should take legal action in enforcing such use restrictions. A nuisance which is minor (e.g., only impacts one homeowner) may not ultimately justify the expense the HOA will incur in taking action to remedy the problem. However, a more significant nuisance which impacts multiple homeowners (e.g., constantly throwing loud parties) is likely a situation where the HOA should step in.

That is not to say that an individual homeowner suffering from a minor nuisance is without recourse. HOA governing documents typically contain provisions which permit homeowners to take action themselves to enforce the governing documents. Additionally, unless the governing documents state otherwise, that right is also codified at Civil Code § 1354(a).

Homeowners suffering from nuisances should attend Board meetings to present their case to the Board. While the Board has discretion in determining the propriety of legal action, the homeowner can suggest that the Board employ less serious enforcement measures such as violation notices, imposing fines or suspension of privileges.

To submit HOA law questions to Tinnelly Law Group, click here.

Charging Homeowners HOA Attorney’s Fees in Violation Hearings?

Published on: January 23, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Shining Some Light on Architectural Review of Solar Energy Systems

Published on: December 27, 2011 | by Steven J. Tinnelly, Esq.

*New Case Law hoa_solar

More and more homeowners are seeking to utilize the cost-savings and environmental benefits that solar energy systems provide. However, the way in which a homeowner may obtain cheaper and “greener” energy should be balanced against the need for a Homeowners Association (“HOA”) to ensure that such systems will not place additional strain on the Association’s maintenance resources or jeopardize the aesthetic harmony of the community. Civil Code Section 714, a component of the “California Solar Rights Act,” purports to provide for such a balance by imposing additional requirements on an HOA when it evaluates a homeowner application for a solar energy system.

The interpretation of these requirements was central to the ruling in the recent case of Tesoro del Valle Master Homeowners Association v. Griffen. In Tesoro, defendants sought to install a solar energy system at their residence (“the Property”) located within the Tesoro del Valle Master Homeowners Association (“Association”). The dispute arose after the defendants proceeded with installing the solar energy system without the Association’s approval. As is the case with many HOAs, the Association’s CC&Rs prohibited homeowners from performing any “construction, alteration, or removal of any Improvement in the [Association]…without the approval of” the Association’s Architectural Control Committee (“ACC”).

The ruling in Tesoro dealt with many factual and procedural issues regarding the process by which the defendants’ application for a solar energy system was denied by the ACC. However, the most interesting aspects of the holding relate to the court’s interpretation of three issues concerning a HOA’s legal obligations under Section 714 when evaluating an application for the installation of a solar energy system. In general, these issues were:

What factors can establish that, within the meaning of Section 714, a HOA’s CC&Rs and design guidelines allow for an “alternative solar energy system” of “comparable costs and efficiency” that “does not increase the cost or decrease the efficiency” of the proposed system?
May a HOA consider the aesthetic impact of a proposed solar energy system in determining whether to approve the application?, and
If a HOA rejects an application for a solar energy system by requesting that the applicant explore a possible alternative solar energy system, is the HOA responsible for designing or proposing such a system?

Imposing Fees on HOA Members who Rent out their Homes?

Published on: December 5, 2011 | by Steven J. Tinnelly, Esq.

The additional burdens that renters impose can be substantial for many common interest developments–especially those developments designed as “recreational communities.” Renters who lack a sense of investment in the community or who are unfamiliar with its operational structure can place greater strain on the community’s management and maintenance resources. This may not only frustrate other owners within the community, but may also significantly impact the financial health of the Homeowners Association (“HOA”) formed to preserve and protect it.

We have written about how HOAs adopt and enforce rental restrictions as a means to alleviate some of the problems posed by renters. We have also published a resource explaining how new legislation taking effect January 1, 2012 will limit a HOA’s ability to restrict rentals in certain circumstances. However, in addition to imposing rental restrictions where possible, can a HOA impose a fee on owners who wish to rent out their homes? In the recent, unpublished decision of Watts v. Oak Shores Community Association, the answer may be yes.