HOA Lawyer Blog

Is a Homeowners Association Required to Install and Maintain AEDs?

Published on: July 17, 2018 | by Steven J. Tinnelly, Esq.

The issue of whether or not a homeowners association is required to install and maintain an automated external defibrillator (“AED”) on-site is a question that has not been directly addressed by California courts. As a result, many community members and Board of Directors (“Board”) seek legal guidance and clarity as to the same. In particular, associations that maintain common area facilities and accommodations such as a gym, basketball court, tennis court, or swimming pool, feel the need to maintain an AED due to the rising number of lawsuits that are being filed against businesses and corporate entities for failing to maintain same.

The main cause of action named in these lawsuits is one of negligence, wherein plaintiffs claim the landowner has breached its duty of care by failing to maintain an AED on-site; chief among these cases is Verdugo v. Target Corp. (2014) 59 Cal.4th 312. In this case, Verdugo, age 49, suffered a sudden cardiac arrest while shopping at Target and died despite the paramedics’ attempts to revive her. There was no AED in the store. Verdugo’s family members filed the suit against Target claiming that it breached its duty of care to its invitees (i.e., business guests) by failing to maintain an AED in the store. However, the Court ruled in favor of Target holding that it did not owe a statutory or common law duty to maintain an AED.

The Court found that Target did not owe a statutory duty of care under California Health and Safety Code (“CHSC”) §1797.196 because it only imposes obligations on an entity or person that maintains an AED; the statute does not require them to maintain same. More importantly, the Court reasoned that while Target owed a reasonable duty of care to provide assistance to a patron in medical need, maintaining an AED exceeded the scope of duty. The Court looked at two factors: (1) the degree of foreseeability that the danger will arise on the business’s premises and (2) the relative burden that providing a particular precautionary measure will place upon the business.

In its evaluation of the two factors, the Court found that there was no reason for Target to foresee that shopping within its premises would increase the risk or cause an invitee to go into cardiac arrest. Secondly, the burden of regularly maintaining an AED (in accordance with all federal and state regulations) and trained personnel on-site was not minor or minimal, outweighing the need for same.

Although Verdugo dealt with a for-profit corporation, it appears to support the position that homeowners associations are not required to maintain an AED. Like Target, a homeowners association does not have any reason to foresee an increased risk of cardiac arrest within its premises from the mere fact an individual—whether it is a homeowner, guest, or tenant—is occupying a unit within the community or visiting.

New Client: Park Vista Maintenance Association

Published on: July 10, 2018 | by Steven J. Tinnelly, Esq.

Park-Vista We are proud to announce that Park Vista Maintenance Association has selected Tinnelly Law Group as their association’s legal counsel.

Park Vista is part of the Woodbridge Village Association in the City of Irvine. Residents enjoy tennis courts, green parks, association pools and spas, and use of the lagoons and clubhouses.

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

New Client: Lucent II Homeowners Association

Published on: July 3, 2018 | by Steven J. Tinnelly, Esq.

We are proud to announce that Lucent II Homeowners Associations has selected Tinnelly Law Group as their association’ Lucent-II s legal counsel.

Lucent II is a brand new condominium community by Shea Homes. Located in San Diego, Lucent brings the feel of a luxury hotel to the Civita community, much like a Manhattan loft on the edge of Central Park. Once inside, wide-open floor plans are graced by glass on three sides and wrap around balconies to flood the interior with sunlight and expansive city lights.

Our HOA attorneys and staff look forward to working with Lucent II’s Board and management.

Water Damage Claims in Your Condo Association

Published on: June 26, 2018 | by Steven J. Tinnelly, Esq.

hoa-water-damage-claims *New Library Article!

Many condominium associations face problems due to a misunderstanding of how their association’s policies of insurance operate and should be utilized—especially in connection with property damage emanating from broken pipes or plumbing fixtures. Those problems include, among others: (a) denying owners the benefit of the insurance coverage to which they are entitled; (b) having the association assume broader repair responsibilities than what it legally must or should; and (c) failing to adopt policies to allow for losses to be resolved in consistent, equitable and cost-efficient manners.

Our HOA attorneys have authored a new article to address these problems by dispelling some of the confusion at their core. In doing so, we provide recommendations as to how condominium associations should approach water damage claims with the assistance of their HOA legal and insurance professionals. Those recommendations include what we believe every condominium association should adopt as part of their operating rules: a “Water Loss Policy.”

The article, entitled “Water Damage Claims in Your Condo Association,” is available for download from our firm’s library. You can access the article by clicking here.

New Clients: Civita Community and Civita Residential Associations

Published on: June 19, 2018 | by Steven J. Tinnelly, Esq.

Civita We are proud to announce that Civita Community and Civita Residential Associations have selected Tinnelly Law Group as their associations’ legal counsel.

Civita is a new master planned community in San Diego. Located in the heart of Mission Valley, Civita blends equal parts urban vibe and village charm. Spanning 2.5 acres, the Rec Center includes a lagoon pool, lap pool, two spas, an outdoor screen for summertime movies, and a 9,000 square foot clubhouse with fitness room, game room, and multipurpose room with a professional kitchen. Over 60 acres of parks, open space and a civic center are planned.

Our HOA attorneys and staff look forward to working with Civita’s Board and management.

New Client: Brookstone Condominiums Homeowners’ Association

Published on: June 12, 2018 | by Steven J. Tinnelly, Esq.

We are proud to announce that Brookstone Condominiums Homeowners’ Association has selected Tinnelly Law Group as their associations’ legal counsel.

Brookstone is a quiet condominium community located in South Huntington Beach. Residents enjoy a community pool, spa, barbecue area, and close proximity to the beach.

Our HOA attorneys and staff look forward to working with Brookstone’s Board and management.

Sticks and Stones

Published on: June 6, 2018 | by Steven J. Tinnelly, Esq.

hostile-work-environment As HOA industry professionals, there are many positive aspects to our occupation. We work with a diverse group of people, take fulfillment from helping volunteer boards, and are happy when we solve problems through creativity. Unfortunately, there are situations that can become difficult.

Most association managers (“Manager”) have had some experience dealing with abusive homeowners and demanding board members (“Hostile Actor”). Typically, the Hostile Actor exhibits unrelenting behavior that becomes obnoxious despite Management’s best efforts.

The purpose of this article is to provide Managers with a brief primer as you experience hostility in the moment – via email correspondence, telephone calls, or direct confrontations.

When you encounter hostile situations, it is important to remember that your Management Company was hired to serve as the managing agent for the Association. Your primary responsibility is to implement the board’s directives and to serve as a communications liaison between the board and the residents. For the most part, substantive decisions are made by the board at monthly board meetings. Recognizing that legal relationship can assist the Manager when confronted with a threatening email or any other form of communication. Below is a sample response to consider when responding to a Hostile Actor:

“Thank you for your email. The board values resident communication relating to Association business. I understand your concerns and will forward your communication to the board for review at the next board meeting.

A phone call is usually the next step if the Hostile Actor is not satisfied with Management’s return correspondence. You should be able to tell where the call is headed based upon his or her initial tone and word choice. Hostile situations may be diffused or avoided altogether by giving the caller a chance to be heard; the Manager can use the call for good as an opportunity to further explain why it would be inappropriate and unfair if Management were to respond at that time.

You do not deserve to be the subject of personal attacks. Phone calls that lapse into volatile language should be ended as soon as possible by stating that all future communication must be sent in writing for board review. After the call concludes, it is advisable to send an email to the Hostile Actor which politely confirms your prior statement about future communication. If possible, the Manager should prepare an internal memo which documents what was said with as much detail as possible. The memo can be used to notify other Management employees regarding the Hostile Actor’s prior phone call and for evidence preservation purposes. Preserving inflammatory communication can help general counsel with later drafting cease and desist correspondence and, if necessary, filing a temporary restraining order if abusive behaviors later escalate.

With limited exception, there is no need for in-person meetings between Managers and Hostile Actors who have demonstrated a prior pattern of disruptive conduct. In general, Hostile Actors do not show up at Management’s business office unless they are angry. For that reason, direct confrontations, which are rarely productive, are not recommended because of the potential for further abuse. Management’s receptionist, if available, should screen the reason for the visit and then direct the Hostile Actor to forward his or her concerns to the board in writing. If a Manager interacts with a Hostile Actor, then all meetings should be held in the open presence of at least one (1) other Management professional so that conversations can be witnessed. One-on-one meetings in a private office are discouraged.

What happens when the Hostile Actor is a board member? Management’s executive team, if available, should be contacted for assistance to navigate the delicate client relationship. The board member should be reminded that your ability to support the Association depends upon establishing a professional working relationship.

The appearance of the Hostile Actor at board meetings is not uncommon. The Manager can reduce the possibility of hostile meeting environments by being proactive. Distributing policy statements for board meeting conduct and requiring the completion of homeowner speaker cards are effective ways to create a healthy work space. Those documents can state that homeowner forum will be time limited and interruptions will not be tolerated, among other things. Unruly board members may be tempered by emphasizing the importance of only discussing agenda items and underscoring the negative consequences to the Association by engaging in harmful dialogue.

The Hostile Actor is a frequent character in the business of managing community associations. Disruptive situations should be identified and handled swiftly by the board and Management on a case by case basis through a collaborative process. The Manager should consider contacting ‘legal’ if abusive communication intensifies. General counsel can then offer potential solutions for board review such as sending cease and desist correspondence, initiating the Internal Dispute Resolution process, or seeking judicial relief.

-Blog post authored by TLG Attorney, Kumar S. Raja, Esq.

New Client: Spyglass Hill Community Association

Published on: May 29, 2018 | by Steven J. Tinnelly, Esq.

Spyglass-Hill We are proud to announce that Spyglass Hill Community Association has selected Tinnelly Law Group as their associations’ legal counsel.

Spyglass Hill is a custom home community situated on a hill in Corona del Mar. Residents enjoy panoramic views of Newport Harbor, Catalina Island, and the Newport Beach coastline.

Our HOA attorneys and staff look forward to working with Spyglass Hill’s Board and management.

New Client: Mission Trails Collection Community Corporation

Published on: May 17, 2018 | by Steven J. Tinnelly, Esq.

Mission-Trails We are proud to announce that Mission Trails Collection Community Corporation has selected Tinnelly Law Group as their associations’ legal counsel.

Mission Trails Collection is a new condominium community by City Ventures. Located in Santee, residents will enjoy solar-powered townhomes, smart heating and cooling systems, homes pre-wired for electric vehicle chargers, and views of Mission Trails Regional Park.

Our HOA attorneys and staff look forward to working with Mission Trails Collection’s Board and management.

HOA CC&Rs & Condo Plan Trump Conflicting Rights Conveyed in Deed

Published on: May 9, 2018 | by Steven J. Tinnelly, Esq.

hoa-parking-space *Unpublished Opinion

Homeowners Association (“HOA”) Boards of Directors and management professionals often encounter disputes with homeowners as to who has the right to use common areas parking spaces within a condominium development. Homeowners often believe that such spaces are part of their separately owned units (their separate property or “separate interest”); that the spaces were “deeded” to them and the HOA is therefore is limited in its ability to regulate, restrict, or reassign the use of those spaces. For most condominium projects, parking spaces are portions of common area which the HOA may—or in some instances must—reserve for a particular homeowner’s exclusive use, based upon the language of the HOA’s governing documents (i.e., the language of its CC&Rs and/or condominium plan).

We have seen instances where the deed to a unit that was conveyed to the homeowner by the initial developer of the HOA does include a reference to a particular common area parking space as assigned to the homeowner for her exclusive use. However, such deeds often parallel language in the HOA’s CC&Rs and/or condominium plan which support that exclusive use assignment. In other words, the language of the deed merely reiterates the applicable language of the CC&Rs and/or condominium plan establishing a particular parking space as a portion of common area for which the homeowner listed in the deed has exclusive use easement rights.

The situation becomes more complicated when the exclusive use language in the deed is ambiguous or is not supported by any provisions of the HOA’s governing documents. This was the central issue in Michaelson v. V.P. Condominium Corporation, No. D071215 (Cal. Ct. App. Feb. 21, 2018). The HOA in Michaelson consisted of an eleven (11) unit condominium development, in which each unit was granted an exclusive right to use an assigned garage parking space as defined in the HOA’s condominium plan. However, the condominium plan also denoted a 12^th unassigned garage parking space (“Unassigned Space”). For some reason, the right to use this Unassigned Space was actually listed in the deed (“Deed”) to a unit (“Unit”) that the HOA’s developer conveyed to the first homeowner of the Unit, which was later conveyed to the Plaintiff homeowner (“Homeowner”).

The HOA accused the Homeowner of fraudulently acquiring the Unassigned Space and demanded that he convey his interest in the Unassigned Space to the HOA. The Homeowner sued the HOA to quiet title on the Unassigned Space based on the following: (1) the Deed included the exclusive right to use the Unassigned Space; or in the alternative, (2) the Unassigned Space was acquired by adverse possession.

The Court quickly disposed of the Homeowner’s adverse possession claim because the tax for the Unassigned Space was paid for by all the HOA’s members and not by the Homeowner (one of the elements for an adverse possession claim in California requires claimant to have paid taxes on the property; See Code Civ. Pro § 325; See also Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal. App. 5^th 982).

With regard to the Deed, the Court found that it was ineffective as to the right of exclusive use of the Unassigned Space despite the fact that the HOA’s CC&Rs specified garage spaces as part of the “exclusive use common area.” This is because the CC&Rs tied the definition of exclusive use common area to the condominium plan, and the condominium plan did not define the Unassigned Space as exclusive use common area. The Court therefore held that the Unassigned Space belonged to the HOA as general common area, and as such the CC&Rs prohibit the transfer of the Unassigned Space without consent of 75% of the eligible mortgagees on the units.

The Court of Appeal affirmed the trial court’s order to grant the HOA’s motion for summary judgment plus attorney’s fees, holding that the Deed was a “wild deed” with ineffective conveyances that conflicted with the reservations contained in the CC&Rs and the condominium plan.

This case highlights the often forgotten importance of condominium plans. While CC&Rs will answer most questions regarding ownership and use rights, the CC&Rs for condominium projects will often relate to and reference the development’s condominium plan in significant ways.

-Blog post authored by TLG Attorney, Andrew M. Jun, Esq.

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