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. |
It’s our privilege to welcome The Landing West Community Association to Tinnelly Law Group’s growing family of HOA clients.
The Landing West is a new community of single family homes by The New Home Company. Located in Fremont, residents enjoy the modern amenities of Fremont living and close proximity to the Bart Station for easy access to the Silicon Valley.
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Our HOA lawyers and staff look forward to working with The Landing West’s Board and management. |
*Asked & Answered
Asked – Our HOA Board of Directors just learned that any member may request a copy of our HOA’s membership list and have access to other members’ personal contact information. Is there anything we can do to protect the privacy of our members who may not want their personal information shared with others in our community?
Answered – Yes. California law does allow any member of your HOA to inspect and copy specified “association records,” which include your HOA’s membership list. The membership list contains member names, property addresses, and mailing addresses. Moreover, due to recently enacted legislation, the membership list now includes member email addresses as well. (Civ. Code section 5200(a)(9).)
This raises several privacy concerns. Members making a request for the membership list could ultimately give or sell the list of addresses to soliciting vendors, or use the contact information contained in the membership list for other improper purposes. To prevent this result, our HOA lawyers encourage our clients to become familiar with Civil Code section 5220. This provision allows a HOA member to submit a written request to be removed from (to “opt-out” of) the membership list in order to prevent the disclosure of their private contact information to other members. This opt-out remains in effect until changed/revoked by the member.
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We recommend that HOAs adopt privacy policies and opt-out forms to help protect their members’ private contact information. **An example HOA privacy policy and opt-out form is available for download on our website at: tinnellylaw.com/opt-out.pdf. |
It’s our privilege to welcome Colorado Commons Maintenance Association to Tinnelly Law Group’s growing family of HOA clients.
Colorado Commons is a new condominium community by Barker Pacific Group. Located in Old Town Monrovia, residents enjoy leisurely strolls to nearby restaurants, shopping, farmers markets, and concerts in the park.
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Our HOA lawyers and staff look forward to working with Colorado Commons’ Board and management. |
*New Case Law
In the case of Aldea Dos Vientos v. CalAtlantic Group, Inc., the Second District Court of Appeals overruled the Fourth District’s previous holding in Branches Neighborhood Corp. v. CalAtlantic Group, Inc. The Branches case found that homeowners associations forfeit their rights to pursue construction defect claims unless their members first vote to approve such legal action in accordance with their CC&Rs. The Branches decision was overturned upon the finding that developers cannot use the CC&Rs to veto claims made against them. The Court of Appeals held that such use of the CC&Rs not only violated public policy, but also Senate Bill No. 326, as codified by California Civil Code, section 5986(b).
Factual Summary
A condominium project in Thousand Oaks, Aldea Dos Vientos (“Association”), brought suit against CalAtlantic Group, Inc., the successor to the developer of the Project (“Developer”). The trial court stayed the lawsuit on the parties’ agreement to participate in mediation and then arbitration. When mediation was unsuccessful, the Association subsequently filed a demand for arbitration. After the demand was filed, the Developer cited to the Association’s CC&Rs at Section 7.01B to raise a defense. Section 7.01B required the Association to first obtain a membership vote in excess of fifty-one percent (51%) prior to commencing arbitration. The Association admitted it had not obtained the required vote.
In response, the arbitrator stayed the arbitration to allow the Association to petition the trial court to review this issue of arbitrability. In the meantime, the Association obtained membership approval to continue with arbitration from over ninety-nine percent (99%) of its members. The trial court denied the Association’s motion on the grounds that arbitrability was a matter for the arbitrator to decide. The Developer then filed a motion to dismiss with the arbitrator for the Association’s failure to comply with the CC&Rs at Section 7.01B. The arbitrator summarily dismissed the original demand for arbitration, and the trial court concluded that the arbitration constituted a final determination of the rights of the parties, so judgment was entered in favor of the Developer and against the Association.
Public Policy
In the Aldea Dos Vientos case, the Second District Court of Appeals vacated the lower court’s decision on the basis that the arbitrators exceeded their powers by issuing an award that contravenes an explicit legislative expression of public policy. More specifically, the Court of Appeals found that Section 7.01B of the CC&Rs violates public policy because it gives the Developer the unilateral power to bar an action against itself even though the Legislature clearly intended for housing to be free of substantial construction defects.
Furthermore, the Court of Appeals held that Section 7.01B of the CC&Rs, and any similar provision, is not just unreasonable but unconscionable. The Court stated, “[i]t gives the Developer veto power over the Association’s claims in spite of the members’ vote to proceed with the arbitration.” In sum, such a provision amounts to a trap for the unwary set by the Developer to bar claims against it. For these very reasons, the Second District Court of Appeals declined to follow its sister court’s ruling in Branches.
Senate Bill 326
The Court of Appeals also acknowledged that the Legislature has already found provisions, like Section 7.01B, to be unconscionable. Senate Bill 326 was enacted on August 30, 2019 and took effect on January 1, 2020. The bill added Civil Code, section 5986, subdivision (b) to the Davis-Stirling Act, which prohibits an association’s CC&Rs from limiting a Board’s authority to initiate legal proceedings against its Developer. The Civil Code applies retroactively to any CC&Rs with such limiting language.
The Second District Court of Appeals reversed the judgment in Aldea Dos Vientos on the additional grounds that the arbitrator’s decision to dismiss the original demand for arbitration was not on the merits, nor was the trial court’s judgment final. Furthermore, the arbitrator’s decision expressly stated that it did not directly impact the Association’s second demand for arbitration. Therefore, the Court of Appeals held that the arbitrator’s decision could not have resulted in a final judgment against the Association in the Aldea Dos Vientos case.
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The Aldea Dos Vientos ruling is beneficial for homeowners associations across the state because it preserves their rights to bring construction defect lawsuits against developers regardless of language in the CC&Rs requiring prior membership approval. In any event, homeowners associations should always seek legal advice from attorneys that specialize in HOA law before commencing construction defect lawsuits to ensure their compliance with both state law and their governing documents. |
-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.
It’s our privilege to welcome Mission Lane Owners Association to Tinnelly Law Group’s growing family of HOA clients.
Mission Lane is a master-planned community located in the beach community of Oceanside and features new detached single-family, villas and townhomes by Beazer Homes. Residents enjoy the recreation area with a pool, tot lot, and bocce court, and close proximity to the Oceanside beach and pier.
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Our HOA lawyers and staff look forward to working with Mission Lane’s Board and management. |
It’s our privilege to welcome The Masters Collection at Eastlake Greens Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.
The Masters Collection is a condominium community located in Chula Vista. Residents enjoy the community pool and close proximity to the lake, park, Otay Ranch Town Center shopping, theaters, restaurants, and schools.
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Our HOA lawyers and staff look forward to working with The Master Collection’s Board and management. |
HOA Lawyer Blog