HOA Lawyer Blog

New ‘Community Association Update’ Newsletter – Issue 41

Published on: October 31, 2019 | by Steven J. Tinnelly, Esq.

In case you missed it, Issue # 41 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

SB 323 Signed! The New State of HOA Election Laws
Navigating the Hidden Risks of Homeowner Security Devices
THOU SHALT NOT REMOVE THE MEZUZAH: California Legislature enacts SB 652 to Protect Displays of Religious Items on Doors and Doorframes
Vendor Relationships – Navigating Resident Interactions
The What and Why of Lender Rights, and How to Deal with Same

A link to the newsletter is here.

Need to be added to our mailing list? Click here to sign up. Links to previous editions of our newsletter can be found here.

New Client: Gala Community Association

Published on: October 29, 2019 | by Steven J. Tinnelly, Esq.

New-Client-Photo-Template-0219-300x169 It’s our privilege to welcome Gala Community Association to Tinnelly Law Group’s growing family of HOA clients.

Gala is a new collection of single-story, elevator-served flats at The Cannery in Davis. As the final neighborhood to be built within California’s first farm-to-table new home community, residents will enjoy all the community lifestyle and educational amenities that both Davis and The Cannery have to offer. Forty-eight of the flats are located within the southwestern part of the community along The Cannery Loop Trail. The remaining flats are found in the southern part of The Cannery, near The Amphitheatre and Market Park.

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

SB 323 Signed! The New State of HOA Election Laws

Published on: October 23, 2019 | by Steven J. Tinnelly, Esq.

*New Legislation

Governor Newsom recently signed into law Senate Bill 323 (“SB 323“). SB 323 makes substantive modifications to the Civil Code’s provisions governing HOA elections, effective January 1, 2020. Some of the more significant modifications require associations to amend their election rules to conform to new statutory requirements, limit the types of candidate qualifications an association may adopt, address the only circumstance for elections by acclamation, place limitations on who may serve as an inspector of elections, and bolster the ability of members to overturn an election that is not conducted in accordance with proper procedures.

*We have published a detailed article on SB 323, entitled “The New State of HOA Election Laws.” The article is available for download, here.

*Also included with the article is a “Director Election Timeline” that illustrates the new pre-election notice requirements imposed by SB 323. The timeline is also available for download, here.

SB 323 requires HOAs to make immediate changes to their election rules, especially those HOAs that have their annual meeting set to take place in the first quarter of 2020. Time is of the essence. Our team of HOA lawyers is ready to assist our clients with the steps needed to conform to the changes imposed by SB 323.

The Modern Age of Social Media and the Need for Regulation Within Homeowners Associations

Published on: October 22, 2019 | by Steven J. Tinnelly, Esq.

Like it or not, we live in the age of social media. It is undeniable and has dramatically transformed the way we communicate in every arena, including homeowners associations (“HOA”). Information, opinions and images are broadcast and circulated at a rapid pace with little or no oversight involved. These unfiltered transmissions over social media airwaves can have profound impacts on homeowners associations’ governance (board of directors), as well as its membership (homeowners). Understanding the legal implications of social media use in the context of managed communities is critical to avoid conflicts, unexpected costs and legal battles.

In recent years, we have seen a myriad of lawsuits stemming from social media abuse: In Tennessee, a homeowner faced legal action from her HOA for using the name of her subdivision on her personal Facebook neighborhood page. In New York City, co-op residents aired their dirty laundry online, resulting in multiple lawsuits. Elsewhere, a vacation-condominium owner sued a guest for $15,000 over negative social media comments.

It is not uncommon to find defamatory language being hurled at board members or management by disgruntled homeowners on online community forums, board members purporting to speak on behalf of the association on their personal Facebook pages, and association social media channels turning into de facto board meetings in violation of state law and governing document protocols.

These problems arise largely due to an inherent discord between the nature of social media and how community associations operate. Association managed communities are highly regulated and restricted – indeed, their chief governing instrument is titled Covenants, Conditions and Restrictions (“CC&Rs”). To the contrary, social media regulation is grossly inadequate. Simply put, people are free to share their thoughts and opinions without real consequences, which often leads to capricious communications. However, people cannot do this in community associations. For instance, homeowners cannot blurt out opinions in board meetings – in fact, homeowners are often not even allowed to speak, unless given permission.

Unfortunately, the legal landscape has been quite slow to catch up with the problems associated with unbridled communication. There are few, if any, state laws to govern the use of social media in the realm of corporate governance. Moreover, developers who write the CC&Rs are focusing on issues like special assessments and architectural approval, not whether board treasurer Bob has the right to post his opinions on the clubhouse renovation on Twitter.

SB 234 Signed! Keeping the Kids Close to Home Act

Published on: October 17, 2019 | by Steven J. Tinnelly, Esq.

*New Legislation

Governor Newsome recently signed into law Senate Bill 234 (“SB 234“), also know as the “Keeping Kids Close to Home Act.” The new law will take effect on January 1, 2020. SB 234 permits large daycare homes, which provide care for up to 14 children at one time, to operate within HOA communities regardless of contrary language in their CC&Rs. The purpose of SB 234 is to increase the availability of childcare for families across the state by making it easier for daycare homes to operate in residential neighborhoods.

“It is the intent of the Legislature that family daycare homes for children should be situated in normal residential surroundings so as to give children the home environment that is conducive to healthy and safe development. It is the public policy of this state to provide children in a family daycare home the same home environment as provided in a traditional home setting.”

The California legislature previously declared that small daycare homes (those providing care for up to 8 children) were immune from HOA restrictions, like those against commercial use. (See H&S Code, section 1597.40(c).) Prior to SB 234, local governments could decide whether to classify large daycare homes like small daycare homes or to subject the large daycare operators to additional restrictions and requirements.

In effect, SB 234 voids CC&R provisions that prohibit Owners from utilizing their properties as large daycare homes, so long as those Owners follow the necessary state licensing requirements and provide care for no more than 14 children. The bill also informs those wishing to open daycare homes that remedies are available if the local governments or HOAs discriminate against them.

HOAs across the state should be aware that Owners have the right to open large daycare homes within the community, regardless of restrictions against commercial use or for single family use. However, the new law does not allow Owners to violate other CC&R restrictions, like those prohibiting noise nuisances.

HOAs should always consult with their legal counsel when responding to Owners’ requests to open daycare homes within the communities in order to ensure compliance with the new state law and their CC&Rs.

-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.

New Client: Serrano at Glenrose Ranch Homeowners Association

Published on: October 15, 2019 | by Steven J. Tinnelly, Esq.

Serrano-300x169 It’s our privilege to welcome Serrano at Glenrose Ranch Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Serrano is a brand new collection of single family homes by Richmond American Homes. Located in the foothills of East Highland, residents enjoy easy access to the city, mountains, and Big Bear Lake.

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

SB 326 Signed! Balconies, Branches, and Builder Defect Actions

Published on: October 10, 2019 | by Steven J. Tinnelly, Esq.

*New Legislation

Senate Bill 326 (“SB 326”) was recently enacted by the California Legislature and will take effect January 1, 2020. The bill accomplishes 3 main objectives: 1) it requires associations to conduct mandatory inspections for exterior elevated elements, such as decks, balconies, and walkways; 2) it invalidates and prohibits provisions in an association’s governing documents that restrict the board’s authority to initiate a legal proceeding against a developer for substandard construction; and 3) it requires an association to discuss with the membership the potential impacts of a construction defect action against the developer prior to the initiation of such an action.

Exterior Elevation Inspections

SB 326 introduces Civil Code Section 5551, which sets forth brand new requirements for associations with three or more multifamily dwelling units. For these associations, all exterior elevated elements that are supported in substantial part by wood or wood-based products, such as decks, balconies, stairways, and walkways, must be visually inspected every nine (9) years by a licensed structural engineer or architect (“Inspector”). The inspections are intended to determine whether the exterior elevated elements are in a generally safe condition and performing in accordance with applicable standards. These new requirements follow in the wake of a catastrophic balcony failure that resulted in a number of tragic deaths.

While the concept of visual inspections may sound fairly straightforward, the mechanics of the required inspections under Civil Code Section 5551 track unique and complex extrapolation protocols commonly employed in construction defect litigation. As a preliminary matter, not all elevated elements are required to be inspected. Rather, a statistician must be enlisted to prepare a randomized list of all the elevated elements qualifying for inspection (i.e. the total universe of those components that extend beyond the exterior walls of the building to deliver structural loads to the building from decks, balconies, stairways, walkways, and their railings, that have a walking surface elevated more than six feet above ground level, and that are supported in whole or in substantial part by wood or wood-based products). The randomized list must be prepared in such a way that the results of the inspections are representative of the project as a whole, within a margin of error of five (5) percent. This protocol allows for limited visual inspections (which will be a significant savings for the association), but provides confidence that those inspections are representative of the global onsite conditions.

New Client: Flora and Strata Neighborhood Association

Published on: October 8, 2019 | by Steven J. Tinnelly, Esq.

Flora-and-Strata-300x169 It’s our privilege to welcome Flora and Strata Neighborhood Association to Tinnelly Law Group’s growing family of HOA clients.

Flora and Strata is a brand new condominium community by Shea Homes and Brookfield Residential. Located in the master planned community of The Village of Escaya in Chula Vista, residents enjoy a resort-style pool, clubhouse, wellness center, dog park, basketball court, soccer fields, and ampitheater.

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

Appellate Court Rules on Ambiguous Architectural Restrictions

Published on: October 3, 2019 | by Steven J. Tinnelly, Esq.

*New Case Law

The California Court of Appeal recently ruled on the case of Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, which involved a view protection dispute between neighbors. The Plaintiff Homeowners sued the Defendant Homeowners and alleged that Defendants’ remodeling violated several provisions of the HOA’s CC&Rs.

First, Plaintiffs pointed to the CC&R provision, which stated that only single-story family dwellings can be altered or erected, except for those two-story family dwellings that were initially approved by the Developer or Architectural Committee. Plaintiffs argued that although the Defendants’ residence was an approved two-story home, it could not be later altered or modified to enlarge its silhouette.

Second, Plaintiffs pointed to the CC&R provision that prohibited architectural alterations without the Architectural Committee’s prior written approval. This provision contained a clause that stated that the Architectural Committee’s powers expired in 1980. The Plaintiffs argued that once architectural review expired, no architectural changes could be made since no entity existed to review said changes.

Lastly, Plaintiffs pointed to the restriction in the CC&Rs that prohibited “structures” from being erected that could potentially obstruct the view from another lot.

The trial court agreed that the Defendant violated the CC&Rs and ordered the Defendants to remove many of their architectural improvements, which detracted from the Plaintiffs’ view. The trial court also ordered that the Defendants pay the Plaintiffs in the amount of $39,000.00 as interim damages for their view loss.

The appellate court disagreed and overruled a substantial portion of the trial court’s judgment.

As to the first provision of the CC&Rs, the Court of Appeal found that since Defendants’ second story home was initially approved by the Developer and/or Architectural Committee, this specific CC&R provision had no continuing authority.

As to the architectural review expiration clause, the Court of Appeals held that the absence of a reviewing entity meant that the Defendants no longer needed approval to make architectural changes.

Lastly, the appellate court interpreted the final provision of the CC&Rs to mean that all Homeowners were prohibited from building new structures that detracted from the views of other Homeowners, not that the Homeowners were prohibited from altering existing structures. The term “structure” was interpreted to mean outbuildings, not primary residences.

As a result, the Defendants were permitted to maintain their home as remodeled with the exception of some hedges that needed to be trimmed.

This case demonstrates how different interpretations of the same provisions of the CC&Rs can vary greatly and produce drastically different results. For this very reason, HOAs should consult with their legal counsel when interpreting and enforcing ambiguous CC&R restrictions.

-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.

Can an Association Create and Enforce Rules that Only Apply to Children?

Published on: October 1, 2019 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Our Association is seeking legal guidance regarding children playing in the common areas and driveways. Several homeowners have complained about the number of children playing without supervision. Drivers report their concern for the children’s safety as there have been several reports of children almost hurt. The Board would like to know if they have the authority to restrict children from playing in the common areas and/or driveways?

Answered – The short answer is that the Association would be exposing itself to a risk of liability under federal and state anti-discrimination laws by adopting a rule or policy that outright prohibited children from playing in the common areas; including the streets and driveways. This risk would extend to other rules that specifically apply to children only, as opposed to all members/residents of the community.

Generally, an association should proceed with caution when attempting to create and/or enforce rules that specifically apply to children. Federal and state law provides that it is unlawful to limit the use of privileges, services, or facilities associated with a dwelling because of familial status (the law also recognizes other protected classes including those based on race, color, national origin, religion, sex, and disability). Familial status is generally defined as having one or more individuals under 18 years of age who reside with a parent or with another person with care and legal custody of that individual. The effect of association rules based on familial status is that families with children, and those children, are treated differently and less favorably than households comprised solely of adults.

Federal courts have found that an association engages in actionable discrimination when rules specifically target children without sufficient justification. For example, rules that restrict only children from the benefits and privileges of common areas or amenities (such as pools, parkways, streets, etc.) have been struck down as impermissible restrictions against a protected class; namely familial status.

An association pool rule that restricts children under the age of 16 from using the pool without adult supervision would be an example of an impermissible rule. An association may argue that such a rule is intended to protect children. However, it would be easy to demonstrate that many children that fall under the scope of the rule are far more proficient swimmers than many adults (e.g. junior lifeguards). However, a rule that prohibits children under 5 from using the common area spa without adult supervision would likely fare better if a legal challenge was brought because there is a clear and identifiable safety risk with children under 5, regardless of swimming proficiency. Specific adult-only swim hours would be another example of an impermissible rule.

To avoid the risk of a discrimination claim, associations should strive to craft and enforce rules that apply equally to all members and residents within a community. Facially neutral rules of general applicability are far more likely to withstand judicial scrutiny. Alternatively, if an association has a legitimate and compelling justification for a rule that only applies to children (or other protected class), the rule must be the least restrictive means to accomplish the identified goal. This is a high burden to meet, so counsel should be consulted to avoid unnecessary and costly issues down the road.

Associations should be aware that creating and/or enforcing rules that apply only to children (and other protected classes such as race, color, national origin, religion, sex, or disability) exposes an association to federal and state discrimination claims. Associations seeking to address legitimate concerns or issues, such as children’s safety, should work with counsel to create enforceable rules that steer clear of potential discrimination against protected classes.

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

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