HOA Lawyer Blog

Removal of Common Area Amenities

Published on: August 18, 2021 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Many owners in the community have requested that the board of directors consider removing an old, largely unused tennis court. We have three other tennis courts in the community and the space could be repurposed for a variety of other uses. Does the board have the authority to remove the tennis court?

Answered – Generally, not without membership approval. The membership pays dues for the maintenance, repair, and use of common area amenities. Many owners make their purchasing decisions in reliance on the available facilities a community has to offer. If the board unilaterally begins removing amenities without membership approval, there could be a risk of exposure to potential legal action. In addition, some associations have specific provisions in their governing documents that prohibit the elimination of common area amenities without membership approval.

That said, there can be limited situations where a board may have the authority to remove a common area amenity without a vote of the membership. Such situations may turn in part on the size of the amenity, whether it poses a hazard to the residents, and if the governing documents authorize such an action. However, disrepair alone generally cannot be the sole basis of a removal decision as the association usually has a duty to maintain common area amenities in good repair.

We recommend that associations and their boards proceed with caution when evaluating whether to remove a common area amenity. Counsel should be consulted to review the association’s governing documents to advise whether any specific provisions limit or restrict the board’s authority or require a vote of the membership for such actions.

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

New Client: Lazycreek Homeowners Association, Inc.

Published on: August 11, 2021 | by Steven J. Tinnelly, Esq.

Lazycreek-300x169 It’s our privilege to welcome Lazycreek Homeowners Association, Inc. to Tinnelly Law Group’s growing family of HOA clients.

Lazycreek is a community of custom single family homes located in one of the most sought after equestrian neighborhoods in the heart of Orange Park Acres. Residents enjoy the horse-driven community with 20 miles of horse trails, large lots, and close proximity to parks and open spaces.

Our HOA lawyers and staff look forward to working with Lazycreek’s Board and management.

New Client: Brookview Condominiums Owners’ Association

Published on: August 4, 2021 | by Steven J. Tinnelly, Esq.

Brookview-300x169 It’s our privilege to welcome Brookview Condominiums Owners’ Association to Tinnelly Law Group’s growing family of HOA clients.

Brookview is a contemporary condominium community located in the southern region of Costa Mesa. Residents enjoy the pool, spa, and tennis courts.

Our HOA lawyers and staff look forward to working with Brookview’s Board and management.

Megan’s Law HOA Disclosures Regarding Registered Sex Offenders – Proceed with Caution!

Published on: July 28, 2021 | by Steven J. Tinnelly, Esq.

MEGAN4 Megan’s Law is a federal law that permits authorities to release information about registered sex offenders (“Registered Offender”). California has a database of Registered Offenders available for public viewing on the internet (see www.meganslaw.ca.gov). Searches can be done by a Registered Offender’s name, or by city, zip or within a predetermined radius of a selected park, address or school. Once a Registered Offender has been located, his or her picture is displayed, as is the person’s present address, offenses, known aliases and any distinguishing scars, marks and tattoos.

An HOA Board (“Board”) is not prohibited from sharing information obtained from this database with its membership provided it is for the purpose of protecting persons at risk. Additionally, California Penal Code Section 290.03 allows Boards to pass that information along to the Association’s membership as long as it merely restates factual details. However, Boards should nonetheless thread very carefully when considering making disclosures regarding Registered Offenders within the Association because any error in its disclosure could lead to potential civil as well as criminal exposure.

While Directors on a Board are fiduciaries, there does not appear to be a duty by Directors under CA law to disclose the presence of or other information regarding a Registered Offender in the Association. Moreover, due to the different tiers or classifications for Registered Offenders, not all are deemed dangerous notwithstanding their underlying wrongful conduct. Additionally, the law has created protections for Registered Offenders who have “paid their debt” to society and have been released from custody. The only time disclosure is allowed is to protect persons at risk.

Moreover, the disclosure must not be for the purpose of discriminating against or harassing the Registered Offender. Impermissible disclosures or conduct that prejudices such residents (i.e. limiting access to common areas/amenities or otherwise embarrasses the resident) are arguably discriminatory and could lead to criminal prosecution and civil liability.

However and with the above considerations and potential risks in mind, the following options are available to a Board:

Make No Disclosure. The Board could elect not to mention the presence of the Registered Offender. This avoids any potential risk of liability that may arise from improper use of the information, improper notification, or mistaken identification. However, if a child in the Association is molested by the Registered Offender, the parties involved might sue for failure to notify the membership of the potential danger.
Direct Members to the Website. The Board could include a notice in the Association’s newsletter about the Megan’s Law website without any comments about the Registered Offender living in the Association; it would simply encourage members to examine the website and contain certain disclaimer language.
Contact the local Police Department and ask it to give notice to the membership. The advantage is that the Board would avoid potential liability for giving improper notice. The disadvantage is that the agency may refuse to give notice (the more likely scenario).
Lastly, the Board could elect to disclose the identity and address of the Registered Offender. However, this option carries much risk. Although the Registered Offender status is publicly-available information, the direct disclosure of the identity and address may put the Board in violation of the protective statute and create potential for defamation since the information on the State’s website may not be accurate. Moreover, if the Association makes disclosures regarding the Registered Offender, the members may then assume unrealistically, and unreasonably, that the Association is responsible to protect them.

Of the foregoing options, perhaps the most conservative and arguably most prudent is to consider putting a standard notice in the Association’s newsletters that would appear in all future newsletters or website (if applicable). The notice should be generic and state something similar to the following: “For information on registered sex offenders, visit www.meganslaw.ca.gov.” This way, no person in the Association is singled out, but the membership is at least put on notice and provided some guidance to look up the publicly-available information for themselves.

Additionally, it may be best to also indicate that it is not the Association’s responsibility to track or monitor the Registered Offender list, nor to take any action if there is a Registered Offender within the community. Use of such wording would place the responsibility on the residents to check the publicly available website and take whatever precautions they believe is necessary to protect themselves and their families.

If the Board wishes to take more proactive measures while mitigating exposure then the Association’s patrol vendor can be informed of the Registered Offender with clear instructions that they are not to single out or harass the Registered Offender, they must not disclose identifying information about him or her to other residents, and that they shall immediately notify law enforcement if they encounter obvious misconduct that presents an imminent risk to others and particularly when vulnerable groups such as minors are involved.

Otherwise, it may be best not to fully disclose the identity of the Registered Offender to the Association’s personnel, but rather generally put them on notice of the issue for enhanced patrolling purposes. This way, the patrol service can be tasked to generally remain vigilant to promote a sense of safety, but not be given express or implied license to target anyone in particular.

If the Board believes that a Registered Offender has moved into the Association in violation of California or federal law or if the Association would like to generally develop a plan to protect it and its membership, then the Board should immediately consult with the Association’s legal counsel. For example, legal counsel can review all guidelines and restrictions for the Registered Offender housing. It is possible that someone in the Association is operating a licensed day-care center that was not considered when granting the Registered Offender housing, or that your community includes a public park that was not officially recognized at the time of the housing determination. These and many other considerations can be explored with the help of your legal counsel to help protect your Association without creating any unnecessary exposure for the Board.

-Blog post authored by TLG Attorney, Sam I. Khil, Esq.

New Client: Agave La Floresta Community Association

Published on: July 21, 2021 | by Steven J. Tinnelly, Esq.

Agave-300x169 It’s our privilege to welcome Agave La Floresta Community Association to Tinnelly Law Group’s growing family of HOA clients.

Agave is a new residential enclave within the master-planned community, La Floresta in Brea. Residents enjoy full access to the Buena Vida clubhouse, fitness center, pool, spa, and patio.

Our HOA lawyers and staff look forward to working with Agave La Floresta’s Board and management.

New Client: Coronado Pointe Homeowners Association

Published on: July 14, 2021 | by Steven J. Tinnelly, Esq.

Coronado-Pointe-300x169 It’s our privilege to welcome Coronado Pointe Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Coronado Pointe is a luxury gated community located in the coastal community of Laguna Niguel. Residents enjoy spectacular ocean and canyon views.

Our HOA lawyers and staff look forward to working with Coronado Pointe’s Board and management.

Court Confirms, Not Everyone is Entitled to a Protected View

Published on: July 7, 2021 | by Matthew Plaxton, Esq.

*Unpublished Case

In California jurisprudence, it is well established that a homeowner “has no right to an unobstructed view over adjoining property.” (Posey v. Leavitt (1991) 229 Cal. App. 3d 1236, 1250.) Such right may, however, “be created by private parties through the granting of an easement or through the adoption of conditions, covenants and restrictions.” (Id.) And, even then, the right must be expressly stated and narrowly construed.

For example, in the recent unpublished case of Davis v. Irvine Terrace Community Association (2021) 2021 Cal. App. Unpub. LEXIS 53, an owner (“Owner”) sued the association (“Association”) and others alleging a breach of the Association’s Covenants, Conditions and Restrictions (“CC&Rs”). Owner claimed that the Association breached the CC&Rs when it approved a neighbor’s architectural application, which included the construction of a house that would obstruct Owner’s view. While the CC&Rs protect views as to landscape, fences and walls, it contained no similar protection as to houses. Owner nevertheless argued that such protection existed because of the Association’s obligation to enhance and protect “the value, desirability and attractiveness of” Owner’s property. (Id. at p. *16.) The Court rejected Owner’s argument.

In rejecting the Owner’s argument, the Court noted that the CC&Rs included no view protection as to structures such as houses; the Court was unwilling to read into the CC&Rs additional view protections based on the impact architectural modifications would have on the value, desirability and attractiveness of the Owner’s property. Moreover, the Court pointed out that neither the CC&Rs nor the Architectural Guidelines were “intended to protect individual homeowners’ interests. They are intended to protect the community as a whole.” (Id. at p. *14.) Thus, when reviewing an application for an architectural modification, an association need not consider the impact such construction will have on the interests of individual homeowners; rather, the association is only required to consider how such construction will impact the entire community.

Lastly, the Court rejected Owner’s argument that the Association failed to “subjectively consider[] whether [the structures] height and location…will cause disharmony with surrounding structures, including [Owner’s] home[].” (Id. at p. *15.) While reviewing architectural applications will necessarily include a subjective component, there is nothing preventing the Architectural Committee from making a decision based on objective criteria: “The Committee is within its discretion to decide that a proposed plan meets the criteria of “harmony of external design” if it meets certain objective criteria such as height, color, and design scheme when compared to existing structures….” (Id.)

Accordingly, the Architectural Committee was justified in approving the neighbor’s application because it satisfied objective criteria contained in the Association’s Architectural Guidelines.

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

New Client: The Villa Balboa Community Association

Published on: June 30, 2021 | by Steven J. Tinnelly, Esq.

Villa-Balboa-300x169 It’s our privilege to welcome The Villa Balboa Community Association to Tinnelly Law Group’s growing family of HOA clients.

Villa Balboa is a gated condominium community located within walking distance to Newport Beach. Residents enjoy two community pools, a fitness center, tennis courts, and ocean and harbor views.

Our HOA lawyers and staff look forward to working with Villa Balboa’s Board and management.

New Client: Criterion Homeowners Association

Published on: June 24, 2021 | by Steven J. Tinnelly, Esq.

Criterion-300x168 It’s our privilege to welcome Criterion Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Criterion is a contemporary style condominium community located within minutes of shops, restaurants, and Shaffer Park in Orange. Residents enjoy the community pool, greenbelt views, and the many hiking & biking trails.

Our HOA lawyers and staff look forward to working with Criterion’s Board and management.

Returning to the New Normal- Post COVID: A Diary Entry by Rip Van Winkle

Published on: June 23, 2021 | by Steven J. Tinnelly, Esq.

[As written by Rip Van Winkle on June 15, 2021]

In early March 2020, I fell asleep upon drinking my favorite beverage on a California beach. When I awoke today on June 15, 2021, I am surprised to see people celebrating in the streets and face masks in the trash. Home prices are sky high and the cost of a gallon of gas is near $5. What happened during my slumber?! Everything looks normal to me – but is it? Help!

On June 15, 2021, the state of California fully reopened under the New Normal. According to the state’s web site, Governor Newsom terminated “the executive orders that put into place the Stay Home Order and the Blueprint for a Safer Economy.” Previously, it noted that beginning June 15, 2021, all sectors listed in the current Blueprint Activities and Business Tiers Chart may return to usual operations…” How will the state’s reopening plan affect HOAs throughout the state? The purpose of this article is to briefly summarize what some have described as the New Normal – and to address whether HOAs can reopen without restrictions.

The New Normal

COVID-19 continues to be present in smaller numbers throughout the state. The Centers for Disease Control (“CDC”) states that some vaccinated people will still get sick because “no vaccines are 100% effective” and provides that it is “still learning how long COVID-19 vaccines protect people.” Data suggests that some California citizens remain unvaccinated. As of June 17, 2021, the California Department of Public Health (“CDPH”) maintains that the “risk for COVID-19 exposure and infection will remain until we reach community immunity from vaccinations, especially in communities heavily impacted by COVID-19.”

Now that the state will no longer be subject to the state’s COVID-19 health guidelines, does that mean that HOAs can return to pre-COVID operations under the New Normal without regard to prior and existing health recommendations? Not necessarily.

Since the Governor’s March 2020 Executive Order, the state has largely deferred to health mandates imposed by local counties. While the state may have lifted its Blueprint for a Safer Economy, it is possible that some counties may continue to impose COVID-19 limitations for their local populations based upon their respective COVID-19 metrics. “Nothing in this Order shall be construed to limit the existing authority of local health officers to establish and implement public health measures within their respective jurisdictions that are more restrictive than…the public health measures imposed on a statewide basis pursuant to the statewide directives of the State Public Officer.” (Executive Order N-07-21 dated June 11, 2021). Accordingly, it is advisable for HOAs to review local requirements before deciding to resume pre-COVID business (i.e., reopening facilities and holding in-person Board meetings, among other things).

The state’s decision to fully reopen potentially creates confusion regarding the application of health guidelines and safe practices. Fortunately, the Centers for Disease Control (“CDC”) provides a default framework for community associations to evaluate as they reopen throughout the state.

Liability Considerations

During the New Normal, boards of directors and management professionals should not overlook the CDC’s COVID-19 guidance, particularly because reviewing that material could help to prevent liability exposure for the Association. The CDC provides guidance for shared or congregate housing, and multifamily housing (e.g., condominiums and townhouses). The principles from those resources could apply to resident gatherings within community associations, such as in-person board meetings and community events. The CDC web site includes COVID-19 instruction for many daily activities that are fixtures within HOA communities, such as gyms or fitness centers, playgrounds, and pools. HOAs would be well served by considering the adoption of safeguards which appreciate the CDC’s guiding principles in those contexts (i.e., encouraging social distancing and mask wearing; sign posting; and resident education, etc.) because the landscape in 2021 is much different than it was in 2019.

Community associations possess the obligation to discharge their legal responsibilities in accordance with certain standards of care. They can be responsible for harms to third parties if their conduct is considered to be negligent by acting or by failing to act (CACI 400). Negligence is defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”(Restatement Second of Torts, section 282). In general, one is required to exercise the care that a person of ordinary prudence would exercise under the circumstances. The California Supreme Court held the following: “Because application of [due care] is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997).

Notwithstanding the state’s reopening, the amount of care now exercised by HOAs might require a greater appreciation or awareness of safe procedures, in view of the present COVID-19 risk and current health standards. CDC and state/local guidelines, to the extent available, provide detailed guidance that can be considered in that regard. Below are suggested practices for some common HOA functions:

HOA Function

Recommended Practice

Indoor Board Meetings

Face Mask Coverings – see CDPH’s “Guidance for the Use of Face Coverings – Effective June 15, 2021”, or applicable County guidelines, whichever is stricter. Click here for our recent blog post regarding face mask coverings.

Holding Gatherings – see CDC guidance.

Maintenance of Common Area Amenities

Continuance of enhanced cleaning and disinfection practices – beyond those practices in place before the March 2021 Stay at Home Order.

Maintaining Healthy Environments – see CDC Guidance.

Rejoice! It looks like we may be close to the light at the end of the tunnel. Much has changed since I fell asleep. What appears to be normal may not be. I know that I can ask my trusted HOA lawyer for assistance as I take measures to protect my community – but maybe not at the beach… RVW

-Blog post authored by TLG Attorney, Kumar S. Raja, Esq.

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