It’s our privilege to welcome Chelsea Park Owners Association to Tinnelly Law Group’s growing family of HOA clients.
Chelsea Park is located in the heart of Mission Dolores District of San Francisco. Residents enjoy a short walk to the Castro, Valencia Corridor, Dolores Park, award-winning restaurants and all neighborhood conveniences.
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Our HOA lawyers and staff look forward to working with Chelsea Park’s Board and management. |
If 2020 has taught us anything, it is to expect the unexpected. California community associations base their successful and continuing operations on careful planning and budgeting, but Associations must also plan for the unexpected. To that end, association vendor contracts should be drafted to ensure they afford adequate protections for when peril strikes.
Community associations regularly contract with vendors for a variety of services including landscaping and the maintenance and repair of common area components. Vendor contracts are often woefully sparse and fail to contain language to provide the parties with a mechanism to deal with unexpected disasters like war, fire, terrorist acts, or even pandemics like COVID-19.
Force majeure is a Latin phrase that means “superior force.” A force majeure contractual clause defines a set of events or circumstances beyond the contracting parties’ control that may excuse or delay parties’ contractual obligations for performance because performance would either be too difficult, impossible, or impracticable. Without it, the parties are bound to perform even in the face of a deadly viral pandemic which has resulted in shelter-in-place orders and business shutdowns across the state.
Citing Witkin Summary of Law, California courts have specifically held that “force majeure is the equivalent of the common law contract defense of impossibility and/or frustration of purpose: performance of a contract is excused when an (1) unforeseeable event, (2) outside of the parties’ control, (3) renders performance impossible or impractical.” Citizens of Humanity, LLC v. Caitac Int’l, Inc., No. B215233, 2010 WL 3007771 (Cal. Ct. App. Aug. 2, 2010). (emphasis added). In the realm of community association vendor contracts, COVID-19 has made the performance of certain contractual obligations impossible or impracticable. A large non-emergency construction project like a balcony repair which requires access by strangers to the inside of owners’ units comes to mind.
Very few vendor contracts which have not been prepared or negotiated by an attorney contain force majeure clauses. While it is always advisable for Associations to have vendor contracts reviewed by counsel, COVID-19 is an additional reason to seek the advice of counsel before signing a vendor contract. Given that a pandemic and shutdown of this magnitude is, forever more, a foreseeable event, its description should be included in all force majeure contractual provisions moving forward, so as to erase any doubt as to what events constitute the triggering of a force majeure event.
Not all force majeure clauses are created equal. Boilerplate language has been held insufficient in California and other states—a good example being Watson Labs, Inc. v. Rhone-Poulenc Rorer, Inc., 178 F.Supp.2d 1099, 1111 (C.D. Cal. 2001), where language referring to “regulatory, governmental … action” was found to be too vague and boilerplate to reflect that the parties considered that the shutdown of the Defendant’s plant would be encompassed.
Accordingly, an approach of over-inclusiveness should be adopted in drafting force majeure clauses. This ensures that not just a pandemic, but the effects of a pandemic, such as shelter-in-place orders, quarantines, government shutdowns, and other economic ripples caused by the response to an epidemic or pandemic be included in the definition of a force majeure event.
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Associations should have all contracts reviewed by counsel and vendor contracts should contain a well-drafted force majeure clause to afford associations protection from liability in the event a pandemic or other force majeure event requires the delay or termination of a contract. |
-Blog post authored by TLG Attorney, Carrie N. Heieck, Esq.
California homeowners associations started reopening community gyms when the State of California began easing restrictions imposed by the initial COVID-19 stay-home orders from March 2020 according to stages of a reopening roadmap. Thereafter, COVID-19 cases across the state began to spike, causing the state to issue renewed restrictions as set forth in the July 13, 2020 Statewide Public Health Officer Order (“Order”). These renewed restrictions forced HOAs in counties on the Monitoring List, including Orange, San Diego, Placer & Santa Cruz counties, to close previously-reopened gyms and fitness centers unless they could safely operate outdoors.
Due to reduced cases and otherwise meeting the requirements for slowing the spread of COVID-19, Orange, San Diego, Placer and Santa Cruz counties were recently removed from the state’s Monitoring List. However, the removal does not mean that community gyms and fitness centers may reopen at this time. This is because Section 3 of the Order provides that counties placed on the Monitoring List must close indoor gym and fitness center operations, but does not provide for the reopening of those indoor operations once a county is removed from the Monitoring List. For that to happen, the state must modify the Order and authorize the re-opening of indoor fitness facilities. Applicable county orders must also be similarly updated.
For now, the state’s COVID-19 website clearly states, “[c]ounties on, or recently removed from, the County Monitoring List must close indoor operations for the following business sectors, events, and activities . . . Gyms and fitness centers . . .” This means that outdoor fitness facilities are the only option for HOAs in counties on or recently removed from the Monitoring List. However, caution should be exercised (no pun intended) before moving community gyms outside as the equipment could easily be stolen, damaged due to exposure from the elements, cause costly damage to the HOA common area while being moved, or injure workers or volunteers whom are not otherwise qualified to move heavy equipment. Moreover, gym equipment left outside and unattended could increase the HOA’s liability exposure due to, for example, those improperly using it for play or climbing.
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While this state of events may be disappointing for homeowners, continued reduction of COVID-19 cases across the state should encourage state officials to reopen indoor fitness facilities when reopening can be accomplished safely. Homeowners associations are encouraged to consult with their legal counsel before reopening their fitness facilities to ensure compliance with all applicable laws. |
-Blog post authored by TLG Attorney, Carrie N. Heieck, Esq.
It’s our privilege to welcome Bermuda Dunes Community Association to Tinnelly Law Group’s growing family of HOA clients.
Bermuda Dunes is comprised of 1,200 homes in a guard-gated community, with the majority of homes located adjacent to the well known Bermuda Dunes Country Club golf course.
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Our HOA lawyers and staff look forward to working with Bermuda Dune’s Board and management. |
It’s our privilege to welcome Camberly Place Community Association to Tinnelly Law Group’s growing family of HOA clients.
Camberly Place is a new community of single family homes developed by KB Home in the city of Winchester. Residents enjoy a nearby baseball field, walking trails and basketball courts at Washington Park and close proximity to Temecula Valley wine country.
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Our HOA lawyers and staff look forward to working with Camberly Place’s Board and management. |
*Asked & Answered
Asked – Our HOA community manager always recommends that our vendor contracts be reviewed by our HOA attorneys before we sign them. Is this really necessary?
Answered – Yes! Contract review is an integral step to protect the HOA against future contract disputes. Oftentimes, HOA Boards of Directors don’t think twice about a contract until there is a dispute with the other party later on. By this point, it’s too late to negotiate contract terms, and the Board is often left to interpret and navigate poorly written and single-sided provisions that do not provide any support or protection to the HOA.
Contract disputes can be extremely costly and time-consuming. Since contract disputes and related expenses are unpredictable, they aren’t necessarily incorporated into the HOA’s annual budget; this can put a lot of financial strain on the HOA and could lead to special assessments on the membership to cover the costs. Furthermore, contract disputes can leave the HOA tied up with a vendor in which they’d rather part ways. This could leave the HOA without the ability to hire a new, better-qualified vendor to perform the job at hand.
Our HOA attorneys are skilled in the review, revision, and negotiation of contracts specific to HOA needs. Our attorneys can spot concerns that may not be obvious to a Board member, recommend alternative or additional language to provide HOA specific protections, and also communicate these concerns directly with the vendor. Additionally, our attorneys can identify whether the Board may be prohibited from entering the contract pursuant to the HOA’s governing documents. Combined, these efforts will result in a more comprehensive contract and more balanced protections for the HOA.
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By taking the time up front to work with our expert attorneys, Board members can be assured that they are prudently adhering to their fiduciary duties and feel confident that they have taken appropriate measures to mitigate costly and time-consuming contract disputes in the future. |
-Blog post authored by TLG Attorney, Joelle M. Bartkins, Esq.
It’s our privilege to welcome Skylar Owners Association to Tinnelly Law Group’s growing family of HOA clients.
Skylar is a new condominium community by KB Home in the city of Chula Vista. Residents enjoy a community pool, park, and close proximity to Otay Ranch Town Center.
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Our HOA lawyers and staff look forward to working with Skylar’s Board and management. |
It’s our privilege to welcome The Heights on Beverly Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.
The Heights on Beverly is a new condominium community by D.R. Horton in the city of Whittier. Residents enjoy outdoor dining areas featuring picnic tables and barbecues, a tot lot, playground and gathering spaces with bench seating.
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Our HOA lawyers and staff look forward to working with The Heights on Beverly’s Board and management. |
*Asked & Answered
Asked – Our Association does not allow pets in the pool area, but a resident has recently begun bringing her emotional support dog to the pool-side lounge area. Do we have to let the dog accompany its owner to the pool?
Answered – Probably. The Federal Fair Housing Act requires housing providers to make reasonable accommodations that may be necessary to allow persons with disabilities to enjoy their housing, including common area spaces. An accommodation is typically considered reasonable if it does not impose an undue financial and administrative burden on the housing provider or fundamentally alter the nature of the provider’s operation. Normally, allowing an emotional support dog to use a common area that is otherwise off limits to pets will not create such a burden on the homeowners association (“HOA”).
In this case, since the HOA’s restriction on pets from the pool area may be serving as a barrier to prevent this resident from using the pool area, making an exception to this rule and allowing her to bring her emotional support dog to the pool deck is likely a reasonable accommodation that the HOA can make.
However, like other dogs within the Association, an emotional support dog must remain under the control of its owner. This means the HOA can require that the dog remain on a leash while it is poolside with its owner unless a specific accommodation to allow the dog off-leash is requested by the dog’s owner and granted by the HOA – there are very limited circumstances when a dog does not have to be leashed or crated. Furthermore, if the dog causes a nuisance (for example, uncontrolled barking) or poses a threat of harm to another person or the property of another person, the HOA can restrict the dog’s presence in order to eliminate the nuisance or threat to other residents of the HOA.
It is worth noting, however, that just because the emotional support dog is allowed in the pool area does not mean the dog may enter the pool. Public health regulations prohibit dogs in swimming pools, and the HOA may not ignore this regulation to allow the dog inside the pool with its owner. If the owner is in the pool, the dog must continue to remain under control, whether the dog’s leash is held by another person capable of controlling the dog or tethered to a stable element.
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When an HOA receives a request from a resident for an accommodation based on the resident’s disability, the Board should address the request timely and maintain an open dialogue with the resident. The Board should be careful to address these requests in compliance with all applicable laws and should not ask about the nature or extent of the person’s disability. Oftentimes in a request regarding an emotional support animal, the person’s disability and the animal’s related service task is not readily apparent (as may be the case for a dog that helps guide an individual in a wheelchair). HOA’s should consult their legal counsel regarding requests for accommodation of disabled residents. |
-Blog post authored by TLG Attorney, Joelle M. Bartkins, Esq.
It’s our privilege to welcome Smart Corner Owners Association to Tinnelly Law Group’s growing family of HOA clients.
Smart Corner is located on the edge of the Core District and upper East Village in Downtown San Diego. Designed to create a close connection between where people live, work, and play, Smart Corner combines residential living, an office building, ground floor retail space, and a San Diego trolley stop all in one city block. Residents enjoy close proximity to eateries and bars, secure subterranean parking, a rooftop lounge with spa, and a fitness center.
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Our HOA lawyers and staff look forward to working with Smart Corner’s Board and management. |
HOA Lawyer Blog