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**New Legislationhoa-electric-vehicles

For the third time in past seven (7) years, the California Legislature has modified the laws governing the installation and use of Electric Vehicle (EV) charging stations within homeowners associations (“HOAs”). The first time was in 2011 when the Legislature enacted a new statute (now contained at Civil Code Section 4745) designed to nullify any provision in a HOA’s governing documents that prohibited homeowners from installing and using EV charging stations. In the following year, the Legislature then amended the law to give HOAs some regulatory authority in this area. That amendment served two (2) essential purposes: (1) it gave HOAs the ability to impose “reasonable restrictions” on the installation and use of EV charging stations, and (2) it clarified how the statute is primarily intended to apply to EV charging stations to be installed in a homeowner’s exclusive use/dedicated parking space.

This year (2018), SB 1016 was proposed by the Legislature. It makes some significant changes to Section 4745, and also adds new Section 4745.1 to the Civil Code to address EV Charging Station dedicated “TOU” (time of use) meters. Today, September 14, 2018, the Governor signed SB 1016 and its changes to the law will take effect January 1, 2019. The following information summarizes what HOAs should be aware of in the wake of SB 1016’s passage.

Changes to Existing Section 4745, effective January 1, 2019:

  • Section 4745(a) was amended to expand the scope of rights homeowners have to install EV charging stations. Homeowners will now have the right to install EV charging stations in their “units,” not simply their designated, exclusive use common area parking spaces. Some condominium developments are structured such that each “unit” is comprised of a residential element and a garage element.  Other developments actually include spaces within the deeds to the individual units. Thus, regardless of whether a homeowner’s designated parking space is within their unit’s garage, or within a portion of common area, the provisions of Section 4745 apply.
  • Section 4745(f)(1)(D) was amended to clarify that the homeowner has to pay for not only the electricity usage associated with the charging station, but also for the costs of installation of the station.
  • Section 4745(f)(3) was amended to relax the insurance requirements of homeowners who install EV charging stations. The $1,000,000 homeowner liability coverage policy requirement has now been replaced with a requirement for the homeowner to simply have “a liability coverage policy” without any specific amount listed. The requirement for the HOA to be named as an additional insured under the policy has also been deleted. **However, somehow the requirement under 4745(f)(1)(C) for the homeowner to, as a condition of approval, agree to provide a certificate of insurance which names the HOA as an additional insured has not been changed. In other words, the law now contradicts itself. Another “head-scratcher” from the California Legislature that should prompt a clean-up bill next year (we hope).
  • Section 4745(k) has been amended in a way that materially modifies the remedies available in enforcing Section 4745’s requirements. Prior to SB 1016, Section 4745(k) allowed for a prevailing plaintiff in an action to enforce Section 4745 to recover its attorney’s fees. The new law will change this language to allow recovery of attorney’s fees only when “a homeowner requesting to have an [EV] charging station installed and seeking to enforce compliance with [Section 4745]” is the prevailing plaintiff. In other words, regardless of whether the HOA is the plaintiff or the defendant, it will never be able to recover attorney’s fees in a lawsuit to enforce Section 4745 even where the HOA wins! This is the latest example of the Legislature’s willingness to modify the fee-shifting provisions of the Davis-Stirling Act to afford homeowners an advantage over their HOAs.

New Section 4745.1, effective January 1, 2019:

As referenced above, new Section 4745.1 will be added to the Civil Code effective January 1, 2019. It basically mirrors the provisions of Section 4745 (pertaining to EV Charging Station installations) in order to extend them to EV-dedicated “TOU” (time of use) meters. An EV-dedicated TOU meter is an electric meter supplied and installed by an electric utility, that is (a) separate from, and in addition to, any other electric meter, (b) is devoted exclusively to the charging of EVs, and (c) that tracks the time of use (TOU) when charging occurs. It is designed to aid utility companies in determining what price per kilowatt-hour should be charged for the use of an EV charging station at specific times of day.

Applications for the installation and use of EV-dedicated TOU meters must be processed in virtually the same way as applications for the installation and use of charging stations, except that the insurance requirements which apply to charging stations do not apply to EV-dedicated TOU meters. Section 4745.1 also requires HOAs to “attempt to find a reasonable way to accommodate” a request to install an EV-dedicated TOU meter, “unless the [HOA] would need to incur an expense.”

HOA law attorneys SB 1016 is the latest example of the Legislature’s continuing trend of promoting renewable energy technologies and limiting the regulatory authority of HOAs. In our prior blog posts and newsletters on EV charging stations, we have touched on the need of every HOA (especially condominium HOAs) to work with its HOA lawyer to implement rules designed to process homeowner requests for EV charging stations in ways that comport with statutory requirements. That need is even greater now. HOAs that violate Section 4745 and/or new Section 4745.1 are subject to civil penalties and damages.

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hoa-water-damage-claims*New Library Article!

Many condominium associations face problems due to a misunderstanding of how their association’s policies of insurance operate and should be utilized—especially in connection with property damage emanating from broken pipes or plumbing fixtures. Those problems include, among others: (a) denying owners the benefit of the insurance coverage to which they are entitled; (b) having the association assume broader repair responsibilities than what it legally must or should; and (c) failing to adopt policies to allow for losses to be resolved in consistent, equitable and cost-efficient manners.

Our HOA attorneys have authored a new article to address these problems by dispelling some of the confusion at their core. In doing so, we provide recommendations as to how condominium associations should approach water damage claims with the assistance of their HOA legal and insurance professionals. Those recommendations include what we believe every condominium association should adopt as part of their operating rules: a “Water Loss Policy.”

hoa laws The article, entitled “Water Damage Claims in Your Condo Association,” is available for download from our firm’s library. You can access the article by clicking here.

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water-rain-raindrops-drops

On April 7, 2017, Governor Brown signed Executive Order B-40-17, ending the drought state of emergency in most of California.  Drought restrictions will remain in effect in Fresno, Kings, Tulare, and Tuolomne counties, which continue to face drinking water shortages and diminished groundwater supplies.  The new Executive Order rescinds the emergency proclamations from January and April 2014, along with four drought-related executive orders.

Over the last few years, the California legislature has passed several bills aimed at water conservation within community associations. AB 2100 amended Civil Code Section 4735 to prohibit associations from fining or threatening to fine an owner for failing to water vegetation or lawns during a state or local government-declared drought.  SB 814 also authorized penalties for excessive residential water use during periods of government-declared droughts. Now that the state of emergency has been lifted, these laws are no longer in effect, provided the local jurisdiction has not declared a local drought.

AB 2104 further amended Section 4735 to restrict an association from prohibiting low-water using plants as a group, and AB 349 amended Section 4735 to restrict an association’s authority to prohibit artificial turf.  Although the drought restrictions have been lifted, this legislation protects homeowners from having to reverse or remove any landscaping measures that were installed in response to the government-declared drought.

The State Water Resources Control Board (SWRCB) also adopted emergency regulations that subject associations to fines of up to $500 per day for violating the provisions of Section 4735.  These regulations will remain in effect until November 25, 2017, or until they are modified or repealed by SWRCB.

The decision to lift drought restrictions was partly based on unprecedented water conservation.  Californians saved more than 20% of urban water since the Governor mandated water use reductions in 2015.  Despite the record levels of water conservation, the State cautions, “This drought emergency is over, but the next drought could be around the corner,” said Governor Brown. “Conservation must remain a way of life.”

Executive Order B-40-17 continues the provisions in the previous Executive Order, “Making Water Conservation a California Way of Life.”  Permanent restrictions prohibit the use of potable water for:

  • hosing off sidewalks, driveway and other hardscapes;
  • washing automobiles with hoses not equipped with a shot-off nozzle;
  • using non-recirculated water in a fountain or other decorative water feature;
  • watering lawns in a manner that causes runoff, or within 48 hours after measurable precipitation; and
  • irrigating ornamental turf on public street medians.
California HOA lawyers The SWRCB will continue to plan for future droughts and promote water conservation as a way of life, which may result in more legislation.  

Blog post authored by TLG Director of Business Development, Ramona Acosta.

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sb-814-california-water-usage-hoa-e1484179755582California is experiencing the worst drought in over a century.  As a result, the California Legislature has enacted a number of laws aimed at water conservation.  Existing law requires the Department of Water Resources and the State Water Resources Control Board to take appropriate actions to prevent unreasonable water use.  To further the goal of preventing unreasonable water use, Governor Jerry Brown signed into law new legislation prohibiting excessive water use by residential customers during a drought (SB 814).

Specifically, SB 814, which adds Chapter 3.3 to Division 1 of the California Water Code, requires “urban water suppliers” to “establish a method to identify and discourage excessive water use.”  (Water Code § 366(b).)  Accordingly, a water supplier may adopt one of the following methods: (1) a rate structure using block tiers, water budgets, penalties for prohibited uses, and rate surcharges, or (2) an ordinance, rule or tariff (collectively, “Ordinance”) that defines the procedure by which water suppliers are to recognize and deal with excessive water use.  A violation of an Ordinance is punishable by a fine of at least $500 per one hundred (100) cubic feet of water, or seven hundred forty-eight (748) gallons, above the established threshold.

California HOA laws In light of the foregoing, Associations should be mindful of the new prohibition against excessive water use, especially in condominium projects where the units are not separately metered.

Blog post authored by TLG attorney, Matthew T. Plaxton.

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hoa-water-usageIn April of last year Governor Brown ordered mandatory water use reductions for the first time in California’s history in order to address the prolonged California drought crisis. That order directed the State Water Resources Control Board (SWRCB) to impose a twenty-five percent (25%) reduction on the state’s 400+ local water supply agencies. Complying with these mandated reductions caused communities throughout the state to immediately and drastically address their water usage and conservation practices, and to incur significant expense in doing so. This order was issued amidst a string of legislative and regulatory changes aimed at addressing the historic drought. For example, legislation was enacted to prohibit homeowners associations (HOAs) from fining homeowners for failing to water their lawns during the drought, and the SWRCB adopted emergency regulations that subject HOAs to fines of $500 per day for failing to comply with the SWRCB’s restrictions on potable water use.

In an apparent policy reversal, yesterday the Governor lifted the 25% mandated statewide water reduction. The Governor’s new executive order directs the SWRCB and the Department of Water Resources (DWR) to work with water suppliers to develop rules and water use targets that are tailored to the unique conditions of their respective regions.

Under the new rules, which take effect on June 1, communities would set water reduction guidelines based on their own projection of water supplies with the assumption that the next three (3) years in California will be uncommonly dry. The state would then review the projections and impose restrictions on communities it determines are being unrealistic. These rules and restrictions are consistent with legislation proposed earlier this year (SB 814) that, if adopted in its current form, would require water suppliers to establish their own methods to identify and restrict excessive water use.

California HOA laws These rules may lead to a significant reduction, or even an elimination, of water reduction mandates that have compelled HOAs to drastically alter their water usage and watering practices at substantial costs to the HOAs and their membership. The $500 daily fine to which HOAs are subject remains in effect; however, allowing for water reduction mandates to now be established at local levels will hopefully result in more sensible water reduction targets.

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hoa-irrigation-sprinkler.jpg*New Regulations

The prolonged period of drought in California has resulted in numerous regulatory and legislative changes aimed at addressing the water shortage (i.e., legislation regarding low-water using plants and watering during droughts). On March 17, 2015, the State Water Resources Control Board adopted an expanded emergency regulation to safeguard California’s remaining water supplies.

Under the expanded emergency regulation, additional prohibitions on potable water use have gone into immediate effect. All Californians are now prohibited from using potable water to:

  • Wash down sidewalks and driveways;
  • Water outdoor landscapes in a manner that causes excessive runoff
  • Washing a motor vehicle with a hose, unless the hose is fitted with a shut-off nozzle:
  • Operating a fountain or decorative water feature, unless the water is part of a recirculating system; and
  • Irrigating turf or ornamental landscapes during and 48 hours following measurable precipitation (*New)

The newly adopted prohibition on irrigating turf/landscapes during and 48 hours following precipitation (rain) may impact the common area maintenance/irrigation practices of HOAs. Failure to comply with that provision could subject a HOA to a fine of $500 per day.

hoa laws

To read more about the emergency regulation, click here.

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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.

hoa laws

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.

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irrigation.png

In its third consecutive year of severe drought, California faces a historic water shortage and wildfire danger. According to Mashable.com and US Drought Monitor, “The entire state is in some stage of drought, with 77% of the state suffering from ‘extreme’ to ‘exceptional’ drought conditions.” Matters are expected to worsen, as California continues to experience its hottest year on record.

In response to these conditions, Governor Brown signed an Emergency Drought Proclamation in January 2014 declaring a state of emergency and calling upon all Californians to voluntarily reduce their water usage by 20 percent. As residents of homeowners associations (“HOAs”) began responding to the Governor’s plea by reducing their irrigation, HOAs fined their members for failure to maintain their yards in accordance with the governing documents. This led to swift action by both the Governor and the California Legislature.

In April, Governor Brown signed an Executive Order which effectively prohibits HOAs from fining, or threatening to fine, homeowners “who comply with water conservation measures.” The Order further provides that “any provision of the governing document, architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water-saving measures contained in this directive.” One of these water-saving measures is to limit outdoor watering to no more than twice per week.

The California Legislature is also considering three bills related to drought relief, which would impact HOAs. AB 2100 (Campos) and SB 992 (Nielsen) would prohibit HOAs from imposing a fine or assessment against a member for reducing or eliminating water of vegetation or lawns during a Governor-declared state of emergency, or a local government-declared emergency, due to drought. If passed, these bills would take effect immediately as urgency statutes. AB 2104 (Gonzalez) would provide that a provision of the governing documents, including the architectural or landscape guidelines, is void and unenforceable if it would have the effect of prohibiting low water-using plants as a group, or as a replacement of existing turf, or if it has the effect of restricting compliance with water conservation measures. The California Legislative Action Committee (“CAI-CLAC”) continues to seek amendments to these bills as they work their way through the legislature.

hoa laws

It is important to note that both the Proclamation and the pending legislation are limited to periods of a Governor-declared drought. HOAs are still permitted to enforce other landscape maintenance issues, such as weeds, brush, tree trimming, etc. In addition, HOAs may continue to enforce irrigation provisions, provided they are within the parameters outlined in the Order or as set forth by the local water agency. HOAs considering changes to their architectural or landscape guidelines should seek the advice of their legal counsel.

Blog post authored by Tinnelly Law Group’s Director of Business Development, Ramona Acosta.

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

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charging_station1.jpgIn November of last year we discussed the introduction of Senate Bill 209 (SB 209), in our post entitled, “Electric Vehicle Charging Stations in Your Community?” SB 209 as singed into law could be interpreted to broadly require that homeowners associations (Associations) allow electric vehicle (EV) charging stations on common areas–an apparent violation of existing California laws. Our blog post addressed SB 209’s various defects and deficiencies, and touched on a report by CAI’s Legislative Action Committee (“CLAC”) noting the need for an amendment to the law.

On February 29, 2012, Senate Bill 880 (SB 880) was signed into law as an “urgency statute.” SB 880, effective immediately, is a “clean up” measure intended to (1) correct constitutional flaws posed by SB 209, (2) resolve a conflict with Civil Code Section 1363.07, and (3) correct apparent ambiguities within the language of the statute.

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*New Case Lawhoa_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:

  1. 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?
  2. May a HOA consider the aesthetic impact of a proposed solar energy system in determining whether to approve the application?, and
  3. 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?

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