It’s our privilege to welcome The Bluffs at Belmont Association to Tinnelly Law Group’s growing family of HOA clients.
The Bluffs at Belmont is a highly desirable condominium community located in the North Hills of Orange. Residents enjoy a community pool, spa, barbecue area, and close access to hiking and biking trails.
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Our HOA lawyers and staff look forward to working with The Bluffs’ Board and management. |
As security technology becomes less expensive and more accessible to average consumers, homeowners are provided with an exponential increase in available options for exterior security devices. A cursory Amazon search reveals hundreds of such devices including motion sensor lights and home camera offerings that can be accessed remotely from the convenience of one’s smart phone. Given the benefits and low cost, many homeowners have installed security systems in and around their residences to mitigate the risk of theft, property damage, and other criminal activity. As purchases and installations of these devices increase, associations and architectural committees are increasingly confronted with the conflict between the owners’ interest in safety and security, and the association’s interest in uniform aesthetics and neighborhood privacy.
Association Regulation and Liability
Most common interest developments are structured and organized where the association maintains the residence/building exteriors and has the ability to regulate improvements attached and/or integrally related to them. This authority generally includes the ability to approve or deny owner applications to install exterior security devices. Some associations with strict architectural approval procedures may be inclined to significantly limit or outright reject owner installed exterior security devices. However, this approach can expose an association to potential liability, especially where there is a demonstrated need for such devices.
In the case of Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, the California Supreme Court held that a homeowners association stands in relation to owners as a landlord and can be liable for breaches of traditional landlord duties such as failing to address unreasonable risks of criminal activity. The Court found that there was ample evidence to place the association on notice of an unreasonable risk to the plaintiff’s safety, and the failure to act or to allow the owner a self-help remedy subjected the association to liability.
In light of the holding in Frances T., associations should avoid outright prohibitions on owner installed exterior security devices. Instead, associations should develop and implement a comprehensive policy that governs the application, approval, and installation process for such devices. Such a policy allows the association to control the aesthetic characteristics, installation locations, and fields of view (for cameras) necessary to preserve the aesthetic appearance of the community, while preventing the devices from intruding into the seclusion of other residences and infringing privacy rights.
Exterior Security Device Policy
When developing an exterior security device policy, one of the primary considerations should be to limit the risk of invading the privacy of other residences. Generally, there is no recognized right of privacy in common areas. However, California acknowledges that privacy interests can be infringed through devices that provide a technological intrusion from otherwise lawful vantage points. Civil Code section 1708.8(b) states in pertinent part:
A person is liable for constructive invasion of privacy when the person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image . . . or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image . . . or other physical impression could not have been achieved without a trespass unless the device was used.
Under the guidance of the foregoing prohibition against such privacy infringement, any approval of exterior security devices should be focused on ensuring that the primary purpose of the device is to advance the security interests of the applicant owner, and the device does not present an unreasonable risk of privacy invasion to other residences.
To limit the risk of privacy intrusions, a security device policy should contemplate the following requirements:
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Given the limitless permutations of common interest developments and their various layouts, there is no one size fits all approach to resolving the complex issues surrounding owner installation of exterior security devices. As such, consult with legal counsel to develop workable solutions to advance the association’s interests, while preserving the owners’ interest in security and privacy. |
-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.
It’s our privilege to welcome Rocky Point Community Association – Nohl Ranch to Tinnelly Law Group’s growing family of HOA clients.
Rocky Point is a collection of single family homes in the Nohl Ranch area of Anaheim Hills. Residents enjoy large lots and scenic views of the city lights, hills, and mountains surrounding Orange County.
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Our HOA lawyers and staff look forward to working with Rocky Point’s Board and management. |
In case you missed it, Issue # 40 of our ‘Community Association Update’ newsletter is available now!
Topics covered in this issue include:
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.
It’s our privilege to welcome Aura Community Association to Tinnelly Law Group’s growing family of HOA clients.
Aura is a new condominium community in Costa Mesa by DeNova Homes. Residents enjoy a coastal lifestyle with close proximity to Costa Mesa’s award-winning attractions.
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Our HOA lawyers and staff look forward to working with Aura’s Board and management. |
It’s our privilege to welcome Singing Wood Hill Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.
Singing Wood Hill is a collection of single family homes in the city of Anaheim Hills. Residents enjoy panoramic views of the mountains and city lights, and close access to Walnut Canyon Reservoir, walking and hiking trails, and nature center.
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Our HOA lawyers and staff look forward to working with Singing Wood Hill’s Board and management. |
*Unpublished Opinion
We recently blogged about the importance of the the plain language of an association’s Declaration when following pre-litigation requirements to a construction defect claim. On March 18, 2019, the California Court of Appeal ruled that trial courts should not deny a homeowner of his right to submit a case to arbitration pursuant to the CC&Rs when there is a disagreement about whether the homeowner complied with the pre-litigation requirements. Instead, the dispute should be submitted to an arbitrator to make the final decision on whether the conditions precedent to arbitration have been satisfied. (See Baldwin v. Woodside 05s, LP, Case No. E06827 (Cal. Ct. App. March 18, 2019).)
In the case of Baldwin v. Woodside 05s, LP, several homeowners filed a lawsuit against a developer on construction defect claims. According to the development’s CC&Rs, homeowners were required to satisfy certain pre-litigation conditions before they were permitted to initiate lawsuits against the developers. For example, before filing a lawsuit, the CC&Rs stated that:
In the Baldwin case, the homeowners did not satisfy the pre-litigation requirements. The homeowners filed a lawsuit against the developer, without providing notice or an opportunity to inspect, and then tried to compel arbitration and judicial reference through motions to the court. In response, the trial court denied both of the homeowners’ motions, and the homeowners appealed.
The Court of Appeal held that the homeowners were not permitted to appeal the trial court’s ruling in relation to their request for a judicial reference because the Code of Civil Procedure, section 906 only permits appellate courts to review verdicts that involve the merits of the case or that substantially affects the rights of a party. The Court of Appeal found that the decision to grant or deny a judicial reference does not involve the merits of a case. Therefore, the homeowners had no right to appeal and lost their opportunity to submit the matter to a judicial reference.
However, the Court of Appeal found that the trial court erred when it denied the homeowners’ motion to compel arbitration. The Court of Appeal held that while trial courts should determine whether parties agreed to be bound by an arbitration clause in the first place (i.e., the question of arbitrability), only arbitrators should rule on procedural questions, like whether a condition precedent to arbitration has been fulfilled.
Since there was no question that the Baldwin parties agreed to be bound by the arbitration provision in the CC&Rs, and the underlying construction defect claims fell within the scope of the arbitration provision, the trial court was required to grant the homeowners’ motion to compel arbitration. Although the trial court should have left the question of whether the homeowners satisfied the conditions precedent to arbitration to the arbitrators.
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This case serves as a reminder that the California Supreme Court has a long-standing policy of upholding arbitration agreements. If the CC&Rs contain an arbitration provision, a homeowners association should have its legal counsel carefully review the related contractual requirements before commencing litigation in order to save significant legal fees and costs. |
-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.
It’s our privilege to welcome Walnut Square Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.
Walnut Square is located in the fabulous central Irvine area, close to fine schools and universities, and only fast freeway minutes from major employment complexes, shopping centers, ocean beaches and marinas – and all the fantastic leisure-time attractions that Southern California has to offer.
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Our HOA lawyers and staff look forward to working with Walnut Square’s Board and management. |
It is no secret that homeowners’ associations (“HOA”) are run and managed through the funds of monthly HOA assessments (“Fees”), and more often than not, HOA’s hire and retain debt collection firms to collect on past due Fees from delinquent members of the community. Sometimes, this leads HOA’s to lose large amounts of money in collection costs and write-offs (of “bad debt”) due to homeowner challenges under the Federal Debt Collection Practices Act (“FDCPA” or “Act”). The FDCPA provides protection to consumers (e.g., homeowners) from abusive debt collection practices by placing a myriad of procedures and limitations of which all debt collection firms must abide by, unless said firm solely recoups debt via non-judicial foreclosure, in which case the firm will only be subject to FDCPA § 1692f(6), discussed in detail further below. This was the U.S. Supreme Court’s holding in Dennis Obduskey v. McCarthy & Holthus LLP, No. 17-CV-1307, 2019 WL 1264579 (March 20, 2019).
In Obduskey, the homeowner defaulted on his mortgage payment, causing the lender to retain McCarthy & Holthus LLP (“Firm”)—a debt collection firm that solely recoups debt via non-judicial foreclosure—to foreclose on the home. The homeowner, Dennis Obduskey, brought an action against the Firm to challenge the foreclosure on the basis of alleged violations under the Act, among other things; in particular, Section 1692g(b). In short, Section 1692g(b) mandates a debt collector to cease all collection efforts and verify the debt it is attempting to collect if a debtor challenges/disputes the debt.
The Court, in agreement with the lower courts, ruled in favor of the Firm and dismissed the case against same on the basis that the Act (i.e., § 1692g(b)) did not apply to the Firm as it was not a “debt collector” under the Act’s primary definition (un-emphasized portion):
The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another…For the purpose of section 1692f(6) of this title, such term [“debt collector”] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.
(FDCPA § 1692a(6).) (Emphasis added.) The Court found that Section 1692f(6) of the Act was the only section applicable to the Firm as it fell under the “limited purpose definition” of “debt collector” (“LPD”)—section emphasized above—as its sole method of recouping debt was by enforcing security interests held in personal/real property through non-judicial means (e.g., non-judicial foreclosure), exempting the Firm from the rest of the Act.
It’s our privilege to welcome Vista Del Cielo Owners Association to Tinnelly Law Group’s growing family of HOA clients.
Located in Chula Vista, against the breathtaking natural setting of San Miguel Mountain, Vista Del Cielo is a stunning enclave that combines an outstanding location with beautiful residences designed for your modern life.
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Our HOA lawyers and staff look forward to working with Vista Del Cielo’s Board and management. |
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