HOA Lawyer Blog

New Client: Emerson Community Association

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

Emerson We 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.

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

Requesting HOA Enforcement Held to be Constitutionally Protected Activity

Published on: January 2, 2018 | by Steven J. Tinnelly, Esq.

*New Case Law

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].”

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.”

New Client: Tremont Neighborhood Corporation

Published on: October 31, 2017 | by Steven J. Tinnelly, Esq.

new-client-PSD-file-to-edit We 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.

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

New Client: Sierra Vista Estates Towhomes Association

Published on: October 24, 2017 | by Steven J. Tinnelly, Esq.

Sierra-Vista-Estates We 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.

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

AB 634 Signed! Reduced HOA Control of Solar Energy System Installations

Published on: October 16, 2017 | by Steven J. Tinnelly, Esq.

Solar The 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.

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.

Updating Your Association’s CC&Rs

Published on: October 10, 2017 | by Steven J. Tinnelly, Esq.

*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.

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.

New Client: Brea-Olinda Master Community Association

Published on: October 3, 2017 | by Steven J. Tinnelly, Esq.

new-client-PSD-file-to-edit We are proud to announce that Brea-Olinda Master Community Association has selected Tinnelly Law Group as their associations’ legal counsel.

Brea-Olinda is a master planned community located in Brea. Residents enjoy beautiful open and wild spaces, lush landscapes, and a quiet family neighborhood rich in the Olinda Ranch oil history.

Our HOA attorneys and staff look forward to working with Brea-Olinda’s Board and management.

SB 2 Signed: California Legislature Passes the Building Homes and Jobs Act to Address the Affordable Housing Crisis

Published on: September 29, 2017 | by Steven J. Tinnelly, Esq.

housing-crisis California is currently facing a serious shortage of affordable housing. The housing crunch is impacting individuals and businesses in all parts of the state. Businesses are having trouble attracting and retaining employees and individuals face longer commute times and overcrowding, among a host of other issues.

To combat the affordable housing crisis, the California Legislature recently passed the Building Homes and Jobs Act (“Act”). Effective immediately, the Act adds a new section to the Government Code (Section 27388.1) and a new chapter to the Health and Safety Code (Division 31, Part 2, Chapter 2.5).

Effective January 1, 2018, the Act imposes a $75.00 fee for the recording of certain real estate documents like HOA governing documents and collection documents (i.e. CC&Rs, liens, notices of default, etc.) and cannot exceed $225.00 per transaction. The fees generated from the Act will be made available to local governments and the Governor’s Office of Planning and Research through the creation of the Building Homes and Jobs Trust Fund (“Fund”). The Fund will be managed by the California State Treasury.

How the Building Homes and Jobs Act Will Adversely Impact HOAs in California

Central to all HOAs is the collection of assessments on a monthly, quarterly, or annual basis. When a homeowner is delinquent in the payment of assessments, an HOA typically records various lien documents to secure its interest thereby ensuring that it is paid what is owed.

Imposing a $75.00 fee each time these documents are recorded will increase the cost to a delinquent homeowner to resolve an assessment debt with his or her HOA. For homeowners who are already in financial straits and having difficulty making their assessment payments, the added fees to be imposed when lien documents are recorded will make it increasingly difficult for these individuals to bring their assessment accounts current and ultimately remain in their homes.

How the Recording Fees are Distributed through the Building Homes and Jobs Trust Fund

County Recorder Offices will be responsible for remitting the fees they collect on a quarterly basis directly to the Fund. To gain access to the fees collected, local governments must submit proposals to the Governor’s Office of Planning and Research detailing how they plan to use the fees to update planning and zoning ordinances that will streamline housing production.

In addition, the Governor’s Office of Planning and Research will be permitted to use a portion of the fees collected in the Fund to combat homelessness and to create, rehabilitate, and preserve transitional rental housing.

Despite the adverse impact the Act will likely have on HOAs across the state of California, its ultimate goal is to leverage billions of dollars in private investment, lessen the demands on law enforcement and dwindling health resources as fewer people are forced to live on the streets or in substandard housing, and increase businesses’ ability to attract and retain skilled workers.

-Blog post authored by TLG Attorney, Kyle B. Roybal, Esq.

AB 1412 Signed: Clarification of Two (2) Existing Code Sections (Member Notification and Director/Officer Liability)

Published on: September 26, 2017 | by Steven J. Tinnelly, Esq.

Director-Liability On September 25, 2017, Governor Brown signed AB 1412 (effective January 1, 2018) which seeks to clarify Civil Code Section 4041 (Annual Notice of Owner Contact Information) and Civil Code Section 5800 (Limitation of Director and Officer Liability).

Under current law, Civil Code Section 4041 requires the Association to solicit, on an annual basis, mailing addresses from the Members for purposes of providing notice. Members are required to state the primary and secondary addresses to which notices from the Association are to be delivered, among other things. If no such notice is provided, that Section 4041 provides that the default mailing address for purposes of delivery shall be the Member’s property address within the Association.

The existing version of Civil Code Section 4041 potentially inconveniences non-resident Members because they must annually notify the Association of their current mailing address. If they fail to do so, Management is then legally obligated to change the Members’ mailing address back to the Members’ Association address.

AB 1412 removes those administrative burdens by stating that the default mailing address shall be the last address provided in writing by the Member to the Association, if any. Under that circumstance, the Association no longer needs to annually update its Member address records if the Members forget to supply their existing mailing address to the Association.

Civil Code Section 5800 provides liability protections to volunteer Directors and Officers if certain conditions are satisfied (i.e. the act/omission was performed in good faith and within the Director/Officer’s Association duties, etc.). Current law provides that such protections are only available to Directors/Officers in common interest developments that are exclusively residential. The protections previously offered by Section 5800 were unavailable to volunteer Directors/Officers in mixed use settings, such as common interest developments with residential and commercial units.

In view of the growing number of common interests developments throughout the state, the California legislature recognized that Section 5800 did not provide liability protection to Directors/Officers in mixed use common interest developments.

As such, AB 1412 seeks to expand the breadth of Civil Code Section 5800 because it now generally applies to volunteer Directors/Officers in mixed use settings. Such protection is limited to those Directors/Officers who are tenants of a residential separate interest or who own no more than two (2) residential separate interests.

AB 1412 will save time and money because the Association is no longer burdened with the duty to update Member address information if a Member fails to provide Management with his or her mailing address.

Mixed use common interest developments may experience increased Board participation by volunteer Directors/Officers because liability protections are now available under Civil Code Section 5800.

AB 1412 does not address whether volunteer commercial unit owners or Members who own three (3) or more residential units are immune from liability under the same liability protections. A review of the legislative history for AB 1412, coupled with general principles of statutory construction, suggests that those individuals may be excluded in that regard.

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

New Client: Rossmoor Park Owners Association

Published on: September 26, 2017 | by Steven J. Tinnelly, Esq.

Rossmoor-Park We are proud to announce that Rossmoor Park Owners Association has selected Tinnelly Law Group as their associations’ legal counsel.

Rossmoor Park is a condominium community located in Seal Beach. Residents enjoy two pools, a spa, fitness center, barbecue area, and several greenbelts.

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

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