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WaterpointWe are proud to announce that Waterpoint Owners Association has selected Tinnelly Law Group as their associations’ legal counsel.

Located at the water’s edge in the heart of Point Loma, Waterpoint is a limited collection of 40 new upscale mixed-use condominiums developed by ColRich.  Waterpoint fronts the shoreline Promenade at Point Loma which is part of a contiguous waterfront pedestrian connector from Point Loma all the way to downtown San Diego.  Residents enjoy breathtaking bay and downtown skyline views, large outdoor spaces, and al fresco balconies.

hoa laws Our HOA attorneys and staff look forward to working with Waterpoint’s Board and management.

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harvestWe are proud to announce that Harvest at Upland Association has selected Tinnelly Law Group as their associations’ legal counsel.

Harvest by KB Home is a new gated master-planned community in Upland that promotes a “Farm to Fork Lifestyle.”  Residents enjoy an agrarian neighborhood with edible plantings in community gardens and orchards, and a recreation center with a demonstration kitchen, pool, spa, fitness center, BBQ area and outdoor loggias.

hoa laws Our HOA attorneys and staff look forward to working with Harvest’s Board and management.

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notboss63Previously, we wrote on a decision published by the National Labor Relations Board (“NLRB”) wherein the NLRB concluded that, where a contracting party has reserved the authority to exercise control over the employees of another, said contracting party will be found to be the “joint employer” of the other entity’s employees.  In the case of Browning-Ferris Industries of California, Inc. (2015) NLRB No. 672 (“BFI”), BFI retained the services of Leadpoint Business Services (“LBS”) to provide staff to one of BFI’s recycling facilities.  Although the contract between BFI and LBS recognized that the personnel staffed by LBS were the employees of LBS, BFI retained some control over the employees. As such, the NLRB concluded that as long as a company retains (e.g., through the execution of a contract) the authority to control the employees of another, said company will be given joint-employer status. (Id. at p. *2.)

The BFI decision caused quite a stir in the realm of common interest developments. As discussed in our prior post, many associations retain a community management firm to facilitate the duties of the association (e.g., solicit bids for common area maintenance and repair). And while the community managers were historically viewed as the employees of the management firm, the BFI case raised some questions with respect to the nature of the relationship between the employees of a management firm and the association.

Nevertheless, on December 14, 2017, the NLRB did an about-face reversing its decision in the BFI case.  In Hy-Brand Industrial Contractors, Ltd. (“Hy-Brand”) the NLRB held that the BFI standard was “a distortion of common law as interpreted by the Board and the courts…[wa]s contrary to the [National Labor Relations] Act…is ill-advised as a matter of policy, and its application would prevent the [NLRB] from…foster[ing] stability in labor-management relations.” ((2017) 365 NLRB No. 156, *2.) Accordingly, the NLRB concluded that a joint-employment relationship will be found where there is evidence demonstrating that an entity has “exercised joint control over essential employment terms (rather than merely having “reserved” the right to exercise control).” (Id. at p. *5 (emphasis original).) Said control must be “direct and immediate,” as opposed to “indirect,” and must be more than control which is “limited and routine.” (Id.)

Although the BFI case has been abrogated restoring the prior position of the NLRB, associations and management companies must continue to exercise caution when hiring vendors to perform services for the association to prevent a finding of a joint-employment relationship. In Heiman v. Workers’ Compensation Appeals Board, the Court of Appeal concluded that the community manager (and by extension, the association) was the joint-employer of an employee of an unlicensed and uninsured contractor. ((2007) 149 Cal. App. 4th 724.)  Under California law, one of the legal consequences for hiring an unlicensed contractor is that the person who hired the unlicensed contractor may be considered an “employer” for tort-liability purposes. (Id. at p. 735.) Since the community manager hired an unlicensed contractor, it was found to be the joint-employer of the injured worker. And, because of the agency relationship between the management company and the association, the association was found liable. (Id. at p. 744.)

California HOA lawyers In sum, despite the shift in position, associations must continue to insulate itself from a finding of joint-employer status by ensuring that it retains only licensed and insured vendors, and adequately sets forth the scope of work and the level of care and skill required to achieve the desired result within its contract with the vendor.  Moreover, the contract must include a provision requiring the contractor to indemnify and hold the association harmless in the event a labor dispute arises between the contractor and its employees.

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

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Flower-Street-LoftsWe are proud to announce that Flower Street Lofts Homeowners Association has selected Tinnelly Law Group as their associations’ legal counsel.

Flower Street Lofts was converted from the old United Parcels Service (UPS) building constructed in 1936, which serviced the central city of Downtown Los Angeles and surrounding neighborhoods for over forty years. Originally only three-stories high, Flower Street Lofts features a new fourth floor penthouse level constructed on top of the existing structure).

Flower Street Lofts, opened in the fall of 2003, features 91 lofts with over 12 distinct floor plans, ranging from 1,188 sq-ft to 2,600 sq-ft, as well as the tallest residential ceiling heights in the area (from 14′ up to 24′ high). Generous Natural Light shines through the expansive windows which were a reflection of the original UPS building. With views East, West and North, each unit is equipped with gourmet kitchens, stone countertops, well-appointed bathrooms and state-of-the-art wiring for high speed cable modem internet access.

hoa laws Our HOA attorneys and staff look forward to working with Flower Street Lofts’ Board and management.

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EmersonWe are proud to announce that Emerson Community Association has selected Tinnelly Law Group as their associations’ legal counsel.

Emerson by The New Home Company is a new community of contemporary townhomes located in the popular southeast corner of Santa Clara. With its proximity to some of the most innovative tech companies in the Silicon Valley, the name “Emerson” was inspired by Ralph Waldo Emerson, one of the most forward-thinkers of his time. Emerson offers easy access to Saratoga Avenue and San Tomas Expressway, and is within walking distance to the Pruneridge Shopping Center, Pruneridge Golf Club, Santana Row and Valley Fair Mall.

hoa laws Our HOA attorneys and staff look forward to working with Emerson’s Board and management.

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*New Case Lawhoa-tree-trimming

A Strategic Lawsuit Against Public Participation (or “SLAPP”) is a lawsuit brought to prevent or punish someone for exercising their First Amendment right to speak about public issues or to petition the government. In response to this abuse of the court system, California enacted Code of Civil Procedure Section 425.16, known as the “anti-SLAPP” statute. It allows a defendant against whom a SLAPP is brought to file a special motion to strike and, if granted, have the case dismissed and also recover his attorney’s fees.

In recent years we have seen situations where the anti-SLAPP statute has been triggered in homeowners association (“HOA”) disputes (i.e., statements made in connection with HOA Board elections).  The 2017 case of Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (9 Cal.App.5th 119) (Rolling Hills) is another example.

In Rolling Hills, the defendant homeowner, Liu, submitted an application to his HOA to invoke the HOA’s dispute resolution process against his neighbor, Colyear.  Colyear refused to trim trees blocking Liu’s view, despite the fact that there was a protective covenant within the HOA’s governing documents designed to preserve views. In response, Colyear sued Liu and the HOA, alleging, among other things, that the covenant did not encumber Colyear’s property and that Liu and the HOA were wrongfully clouding title to Colyear’s property. Liu then withdrew his application and filed a special motion to strike Colyear’s claims under the anti-SLAPP statute. The trial court granted Liu’s motion.

The trial court’s ruling was affirmed on appeal. The Court of Appeals found that Liu’s application (his request for the HOA to commence enforcement efforts against Colyear) was made in furtherance of Liu’s exercise of the constitutional right of petition in connection with an issue of “public interest” under the anti-SLAPP statute.  It rejected Colyear’s claims that Liu’s application was simply a private tree-trimming dispute between two (2) neighbors.  Rather, it was a matter of public interest because (1) it affected the community in a manner similar to that of a governmental entity, and (2) at the time Liu submitted his application, “there was an ongoing controversy, dispute or discussion regarding the applicability of the tree-trimming covenants…and the HOA’s authority to enforce [them].”

California HOA lawyers The holding in Rolling Hills is another in a continuing trend of cases were constitutional protections have intersected with HOA law, and where HOAs have been viewed by courts as “quasi-governments.”

 

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new-client-PSD-file-to-editWe are proud to announce that Tremont Neighborhood Corporation has selected Tinnelly Law Group as their associations’ legal counsel.

Tremont is a beautiful condominium community located in the Serrano Heights area of Orange.  Residents enjoy serene hillsides, green belts and hiking trails.

hoa laws Our HOA attorneys and staff look forward to working with Tremont’s Board and management.

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Sierra-Vista-EstatesWe are proud to announce that Sierra Vista Estates Townhomes Association has selected Tinnelly Law Group as their associations’ legal counsel.

Sierra Vista Estates is a condominium community located in Mountain View.  Residents enjoy a tennis court, pool, and spa.

hoa laws Our HOA attorneys and staff look forward to working with Sierra Vista’s Board and management.

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SolarThe Governor has signed AB 634 into law changing HOA control over solar energy system (“Solar”) installations. HOAs may no longer adopt policies and guidelines that prohibit Solar installations on common area roofs protecting HOA property and homes from damage and members are stripped of the right to protect common area property by membership vote. HOA’s must conform to a statewide, one-size-fits-all Solar policy summarized here.

Civil Code § 714.1 now provides that Associations are prevented from . . .

  • Establishing a solar energy system policy that prohibits condominium owners from installing solar panels on the common area roofs of condominium buildings or the owner’s adjacent garage/carport (exclusive use common area);
  • Requiring membership approval for an owner’s encroachment for Solar equipment on the common area.

New Civil Code § 4746 declares HOAs reviewing requests for Solar installations on common area roofs of multifamily dwellings . . .

MUST require:

  • Applicants to notify each owner in the building of the proposed solar installation, AND
  • Owners/successive owners to maintain homeowner liability coverage, providing the HOA with proof of insurance within 14 days of approval and annually thereafter;

MAY impose reasonable provisions that:

  • Require owners to provide a survey of “usable solar roof area” prepared by a licensed contractor/knowledgeable salesperson;
  • Require survey to include equitable allocation of usable solar roof area for all owners sharing the roof/garage/carport;
  • Require owners/successive owners to be responsible for:
    • Costs for damage to any common area resulting from installation/maintenance/repair/removal/replacement of Solar installation;
    • Costs for maintenance/repair/replacement of Solar installation until its removal;
    • Restoration of all common area and separate interests after removal;
    • Disclosing the Solar installation to prospective buyers and all related responsibilities

Civil Code § 4600 now includes Solar installations as an exception to the rule requiring approval of 67% of members before the HOA can grant exclusive use of any portion of the common area to a member.

California HOA lawyers In light of AB 634, HOAs should have their legal counsel review their current architectural guidelines with respect to the installation of solar energy systems.

-Blog post authored by TLG Attorney, Terri A. Morris, Esq.

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governing-docs*Asked & Answered

Asked – Our documents were created in 1981 and have not been updated since that time.  I imagine that we are out of legal compliance with some of the items listed within both documents.  The HOA membership does not want to pay to have them rewritten and brought up to the codes and I am not sure what the implications are if we do nothing.

Answered – This a common question asked by many of our clients, especially those with governing documents that look like they were typed on a typewriter and digitally stored on microfiche.  However, it is important to note at the outset that just because your documents are old, does not mean that it is necessary to amend/restate them.  Nevertheless, there are several reasons why an association may want to update its documents.

The first, and most obvious, reason why an association may want to update its documents is to address particular issues affecting the community. While an association’s operating rules can easily be amended to tackle many of these issues, not all can be addressed through adopting an operating rule.  Thus, certain situations may require a CC&R or Bylaw amendment.

The second common reason why an association may want to update its CC&Rs is to remove developer-specific provisions. When an association is formed, the developer’s attorney prepares the governing documents, including the CC&Rs. And while the California Bureau of Real Estate exercises some oversight, many of the provisions are drafted to benefit the Developer and not necessarily the individual homeowners. Accordingly, it may be worthwhile to remove these provisions and reallocate the rights and responsibilities to the Association and its members.

Other reasons why an association may want to update its documents is to reduce quorum and membership approval requirements, and to address changes in the law. For example, a recent change to the Civil Code further defined the maintenance and repair responsibilities of the association and owners concerning Exclusive Use Common Area (“EUCA”) components. For condominium associations that have traditionally held owners responsible for EUCA repairs, changes in the law may require them to change that position if the provisions in their CC&Rs fail to address the issue.

California HOA lawyers Board members should be aware that amending an association’s governing documents can be an expensive endeavor. The expense is often exacerbated by the difficulty experienced in obtaining membership approval, either because of the unpopularity of the proposed amendments, or membership apathy. The foregoing is meant to underscore the importance of discussing potential updates with the association’s legal counsel to determine if they are necessary and/or advisable.

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