HOA Lawyer Blog

THOU SHALT NOT REMOVE THE MEZUZAH: California Legislature Enacts SB 652 to Protect Displays of Religious Items on Doors and Doorframes

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

*New Legislation

On July 30, 2019, SB 652 was signed into law by Governor Gavin Newsome in response to several incidents in which a homeowner’s association (HOA) asked a resident to remove a mezuzah from their unit’s entry door or doorframe. A mezuzah is a small scroll that is affixed to the doorframe of Jewish homes to fulfill the mitzvah (Biblical commandment). For observant Jews, this is not a choice, but rather, a religious duty. Attempts to bar them from fulfilling this duty violated their religious freedom, argued Jewish residents.

In Connecticut, an HOA threatened to fine a resident fifty ($50) dollars if she did not remove the mezuzah affixed to her doorframe. The HOA permitted religious displays (e.g. Christmas wreaths) on doors, but restricted any adornments from being placed on exterior walls. The HOA argued that doorframes are considered exterior walls.

In Florida, an HOA ordered a resident to remove a mezuzah, citing its bylaws prohibiting owners and occupants from attaching, hanging, affixing or displaying anything on the exterior walls, doors, balconies, railings and windows of the building.

In New York, an HOA fined a resident fifty ($50) dollars for affixing a mezuzah to her doorframe shortly after she moved in. The HOA cited its bylaws prohibiting residents from altering the exterior of their home without approval from the Association. The rule included affixing of signs, advertisements or statuary.

While there were only a handful of instances nationwide in which a resident was asked to remove a mezuzah, the bill was designed to have a broader scope in protecting any displays of religious items on doors and doorframes so long as the display reflects “sincerely held religious beliefs.” Specifically, SB 652 prohibits a “property owner” (defined to mean an HOA, an HOA board, or landlord) from adopting or enforcing any rule that prohibits the display of one or more “religious items” on an entry door or doorframe. The bill defines “religious item” to mean any item displayed “because of sincerely held religious beliefs.” The bill also identifies reasonable exceptions, such as allowing an HOA or landlord to prohibit the display of anything that threatens public health or safety, violates existing law, contains obscenities, hinders the opening or closing of any entry door, or is larger than 36” by 12” inches. Also, an HOA may require a separate interest owner to remove a religious item as necessary to perform maintenance on a door or doorframe.

Prior to SB 562, federal and state law provided some protections against religious discrimination in housing, but the author of the bill believed that these protections were not sufficient enough to protect the display of religious items. For example, the federal Fair Housing Act (FHA) prohibits housing discrimination on the basis of religion. Likewise, the state Fair Employment and Housing Act (FEHA) makes it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the religion of that person. (Gov. Code § 12955.) The Davis-Stirling Act, which regulates homeowner’s associations and common interest developments, contains a provision that prohibits the HOA governing documents from prohibiting the posting or displaying of noncommercial signs, posters, flags, banners, on or in an owner’s separate interest, subject to certain exceptions. (Civil Code § 4710.) To the extent that a “religious item” is a sign, poster, flag, or banner, one could argue that existing law already prohibits an HOA from adopting or enforcing any rule that bans the display of religious items. But arguably there is a question of whether a mezuzah or cross hung from a door is a “sign.” SB 562 eliminates that ambiguity by protecting any “item” which is displayed because of a sincere religious belief, whether or not it is a “sign.”

SB 652, which takes effect January 1, 2020, will likely conflict with many HOA policies, which have aesthetic and architectural rules that bar hanging anything on an entry doorframe. According to the author of the bill, such restrictions from HOAs leave the affected people unable to freely practice their religious obligations and in some instances are forced to leave their residence and seek another place to live. By passing this bill, California’s legislature has followed the recent trend in caselaw suggesting that the religious freedom of individuals should take precedence over the communal interests of homeowner’s associations.

Notwithstanding, it is important to note that the right afforded to HOA members and tenants in this bill is extremely limited, only applying to a “religious item” and, even then, only when the item is posted on an entry door or doorframe. For instance, the bill would not provide protection to an owner who wanted to post a similarly-sized religious item in a window, or a door other than an “entry” door.

-Blog post authored by TLG Attorney, Reuben D. Kim, Esq.

New Client: The Bay Collection Homeowners Association

Published on: August 13, 2019 | by Steven J. Tinnelly, Esq.

Bay-Collection-300x169 It’s our privilege to welcome The Bay Collection Homeowners Association, Inc. to Tinnelly Law Group’s growing family of HOA clients.

The Bay Collection is a community of single family homes in Carlsbad. Residents enjoy large lots, ocean and sunset views, and close proximity to the beach.

Our HOA lawyers and staff look forward to working with The Bay Collection’s Board and management.

New Client: The Bluffs at Belmont Association

Published on: August 6, 2019 | by Steven J. Tinnelly, Esq.

Bluffs-at-Belmont-300x169 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.

Our HOA lawyers and staff look forward to working with The Bluffs’ Board and management.

Navigating the Hidden Risks of Homeowner Security Devices

Published on: July 30, 2019 | by Steven J. Tinnelly, Esq.

residential-package 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:

1. An installation plot plan/map should be submitted by the applicant to indicate the intended installation locations and their corresponding fields of view for any visual recording devices such as cameras.
2. Such fields of view should not be permitted to observe neighboring residences, exclusive use, or common areas. Depending on the development/community layout, some installations may not be possible without capturing some of the foregoing areas (such as a doorbell camera that points towards common area). The association body tasked with the review and approval of security device installations should ensure that in such cases, the primary purpose is to advance the security interests of the applicant and that any common area field of view is merely incidental and as limited as possible.
3. Cameras must be “fixed view”, without panning capabilities.
4. Finally, any approved installations should be revocable if the device violates the privacy of neighboring residences so as to constitute a nuisance.

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.

New Client: Rocky Point Community Association – Nohl Ranch

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

Rocky-Point-300x169 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.

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

New ‘Community Association Update’ Newsletter – Issue 40

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

new-hoa-newsletter-40-2-300x167 In case you missed it, Issue # 40 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

U.S. Supreme Court Holds Debt Collection Firms that Solely Practice Non-Judicial Foreclosure Exempt from FDCPA*
Association Hazard Insurance Policies Benefit not only the Association but also all Condo Owners (their tenants) and Mortgagees
Recent California Court of Appeals Ruling Demonstrates Broad Reach of Ban of Nuisances
Court of Appeal Upholds Pre-Litigation Arbitration Clause

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: Aura Community Association

Published on: July 16, 2019 | by Steven J. Tinnelly, Esq.

Aura-300x169 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.

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

New Client: Singing Wood Hill Homeowners Association

Published on: July 2, 2019 | by Steven J. Tinnelly, Esq.

Singing-Wood-Hill-300x169 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.

Our HOA lawyers and staff look forward to working with Singing Wood Hill’s Board and management.

Court of Appeal Upholds Pre-Litigation Arbitration Clause

Published on: July 2, 2019 | by Steven J. Tinnelly, Esq.

*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:

homeowners were required to give notice of the dispute to the developer;
homeowners were required to give the developer an opportunity to inspect and take corrective action;
the parties were permitted to agree to voluntarily mediation;
the parties were permitted to submit the dispute to binding arbitration; and
if mediation and arbitration failed, the parties were required to submit the dispute to a judicial reference.

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.

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.

New Client: Walnut Square Homeowners Association

Published on: June 25, 2019 | by Steven J. Tinnelly, Esq.

Walnut-Square-300x169 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.

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

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