HOA Lawyer Blog

Sober Living Homes in your HOA?

Published on: March 30, 2016 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – We have seen several sober living homes surface within our community. What can our HOA do to prohibit these facilities? Aren’t they businesses which violate the commercial use restrictions in our CC&Rs or other HOA laws?

Answered – Regardless of how you feel about sober living homes, it is certainly a hot issue that numerous communities are dealing with–particularly coastal communities. HOA CC&Rs often contain provisions that prohibit the non-residential uses of properties or the use of properties for anything other than “single family” residential purposes. However, the California Legislature has, through the Health & Safety Code, mandated that a sober living home (an “alcohol or drug abuse recovery or treatment facility“) which services six (6) or fewer persons to be deemed “a residential use of property and a use of property by a single family, notwithstanding any disclaimers to the contrary.” (H&S Code § 11834.25.) This was done in order to immunize sober living homes from City, County and HOA restrictions (i.e., CC&Rs restrictions) on the use of properties for non-residential purposes. The Legislature has even declared it to be the public policy of California to “encourage” the development of sober living homes. To learn more about the law in this area, click here to read our article on FindHOALaw.com.

In situations where a HOA could potentially take action against a sober living home, it is usually because the home is continually violating some other provision of the CC&Rs which the HOA can enforce. However, in our experience, sober living home operators are savvy; they know the playing field and how to keep themselves out of trouble. Moreover, these facilities are generating substantial amounts of monthly revenue from insurance companies and private parties who cover the costs for patients to stay at the home. That revenue dwarfs any potential fines that a HOA might be able to impose for other CC&R violations which may stem from the home’s operations.

Efforts which have been taken by cities against sober living homes have also proven ineffective, largely because recovering addicts are a protected class under the Americans with Disabilities Act (ADA) and other Federal statutes. For example, the City of Newport Beach in 2015 settled a lawsuit brought against the City by several sober living home operators. The operators sued the City over an ordinance it adopted which sought to restrict the facilities’ operations. The operators asserted that the ordinance violated anti-discrimination and fair housing laws. In addition to spending $4 million in legal fees, the City had to pay the sober living home operators $5.25 million as part of the settlement.

Any meaningful restrictions to curb the growth of these facilities within private residential communities will likely need to be enacted at the State level (and potentially the Federal level). California HOAs are virtually powerless to do anything and the current options available to cities in regulating/licensing these facilities are relatively weak.

To submit questions to the HOA attorneys at Tinnelly Law Group, click here.

New Client: The Orchards Condominium Association

Published on: March 21, 2016 | by Steven J. Tinnelly, Esq.

The-Orchards We are proud to announce that The Orchards Condominium Association has selected Tinnelly Law Group as their associations’ legal counsel.

Located in Upland, The Orchards presents two brand new neighborhoods by William Lyon Homes. Residents will enjoy a private recreation center, swimming pool and tot lot, plus a great location near historic downtown Upland.

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

Properly Vetting a HOA’s Vendors & their Contracts

Published on: March 15, 2016 | by Steven J. Tinnelly, Esq.

hoa vendors One of the primary purposes of any homeowners association (HOA) is to manage, maintain and repair the common areas throughout the HOA’s development. This naturally requires the HOA to contract with third-party vendors to furnish goods or services to the HOA (e.g., landscaping, construction, remediation, painting, plumbing, etc.). We are consistently surprised at how some Board members and management professionals fail to recognize how the HOA’s use of improperly vetted vendors can result in potentially significant legal and financial implications for the HOA, among other problems. Therefore, the need to properly vet vendors—and their contracts—is critical before the Board executes any vendor’s contract on behalf of the HOA.

We previously drafted a library article entitled “HOA Concerns in Contracting with Vendors” that provides some guidance as to how a HOA’s Board and Managing Agent can protect the interests of the HOA and its members. This blog post touches on some of the information contained in that article, and sets forth some recommended procedures which should be utilized before any vendor begins work at the HOA’s development.

Click below to continue reading…

New Client: The Crossings of Mountain View Homeowners Association

Published on: February 22, 2016 | by Steven J. Tinnelly, Esq.

We are proud to announce that The Crossings of Mountain View Homeowners Association has selected Tinnelly Law Group as their associations’ legal counsel.

The Crossings is a master planned community located in the city of Mountain View, 30 miles south of San Francisco. It was awarded the Outstanding Planning Award by the American Planning Association in 2002. Residents enjoy a transit-friendly neighborhood, close to retail shops, parks, a daycare center, and the Caltrain commuter rail station.

Our HOA attorneys and staff look forward to working with The Crossings of Mountain View’s Board and management.

House Passes Bill to Simplify FHA Recertification Process

Published on: February 17, 2016 | by Steven J. Tinnelly, Esq.

fha We have previously blogged about the Federal Housing Administration’s (FHA) revisions to its condominium approval guidelines. Recently, the Community Associations Institute (CAI) announced that progress was made towards reasonable reforms to the FHA approval process. On February 2, 2016, the US House of Representatives passed H.R. 3700 the “Housing Opportunity through Modernization Act of 2015” (Act).

The bill is now referred to the Senate for review and approval. If passed, the Act would:

streamline the recertification process,
allow the Department of Housing and Urban Development (HUD) to grant commercial or nonresidential space requirement exemptions, and
reduce the minimum owner occupancy requirement from 50% to 35%.

If this bill becomes law, the recertification process for condominium projects would become substantially less burdensome, allowing associations to maintain their FHA approval status, thereby making homeownership more affordable.

For further analysis of the bill, click here to read CAI’s blog post and letter to US Representative Leuketmeyer, Chairman of the Housing and Insurance Subcommittee.

Association boards and managers can verify the status of a condominium project’s FHA approval at the Official HUD Directory.

Blog post authored by Tinnelly Law Group’s Director of Business Development, Ramona Acosta.

New Client: Westbluff Homeowners Association

Published on: February 10, 2016 | by Steven J. Tinnelly, Esq.

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

Westbluff is a lovely single-family home community nestled in the beautiful City of Fullerton. Conveniently located, Westbluff enjoys not only a beautiful family-friendly environment with access to parks, schools and malls, but also has Los Coyotes Country Club as a close neighbor. Residents also enjoy three beautiful pools and waders, two tennis courts, a basketball court, RV lot, two tot lots, and a volleyball court. Resort-style living all in one quiet and friendly neighborhood.

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

Homeowner Attorneys at your HOA’s Board Meetings? This Could Become the New Normal

Published on: January 29, 2016 | by Steven J. Tinnelly, Esq.

lawyer-hoa-attorney-meeting

Civil Code Section 4925 grants to each member of a homeowners association (“HOA”) the right to attend HOA board meetings (except for executive session meetings). Section 4925 also grants members with rights to speak at board meetings and to address the board during open forum. However, these rights are explicitly granted to the HOA’s “members” (the owners of lots or units within the HOA’s development), not to a member’s agent or attorney. The California Court of Appeal addressed this issue in the 2013 case of SB Liberty, LLC v. Isla Verde Assn. Inc., where it affirmed a HOA’s ability to prohibit a member’s attorney from attending a board meeting on the member’s behalf.

However, Assembly Bill 1720 (“AB 1720”) was just proposed by the California Legislature in order to change this structure by amending parts of Section 4925. If signed into law, AB 1720 will add new subpart (c) to Section 4925 to state:

“The board shall permit an attorney who represents a member to attend any board meeting that the member is permitted to attend, regardless of whether the member attends. Where possible, the member shall give the board at least 48 hours advance written notice that his or her attorney will attend the board meeting.”

AB 1720 follows in the same vein as legislation which became effective January 1, 2015. That legislation (AB 1738) was enacted to grant a HOA member the right to be assisted by an attorney when the member is participating in Internal Dispute Resolution (IDR) with a member of the board.

AB 1720 could be problematic for HOAs by placing boards in a position of having their meetings observed or disrupted by the attorney of a member whom is, or is likely to become, involved in a dispute with the HOA. Such a situation will likely have a chilling effect on the discussions and actions taken at a board meeting where a member’s attorney is present, especially if the HOA’s attorney is not present. While AB 1720’s language currently requires the member to, “where possible,” give the board at least 48 hours written notice that his/her attorney will attend the board meeting, it does not clearly specify whether the attorney must be allowed to attend regardless of whether the member actually provides such notice. Moreover, this notice requirement is presumably intended to provide the HOA with enough time to arrange for its attorney to attend the meeting as well. A mere forty eight (48) hours notice may not be sufficient in this respect. If anything, members should be required to comply with the same timeline currently imposed upon the HOA when it provides notice of board meetings to its members: four (4) days. We will continue to track AB 1720 as it makes its way through the legislature.

New Client: Boulevard Homeowners Association

Published on: January 19, 2016 | by Steven J. Tinnelly, Esq.

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

Located in Santa Clara, Boulevard is the latest collection of condominiums designed for Silicon Valley by Shea Homes. The Boulevard is conveniently located near Santa Clara’s thriving businesses, cultural centers and thoroughfares, and offers its own centrally located park.

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

New Client: Ravello Homeowners Association

Published on: January 12, 2016 | by Steven J. Tinnelly, Esq.

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

Ravello by Shea Homes is a brand new condominium community located within Sorrento at Dublin Ranch. Residents will enjoy a pool, clubhouse, sports parks, and landscaped trails in a verdant park setting.

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

‘Substantial Compliance Test’ Possibly Applicable to Open Meeting Act Requirements

Published on: January 5, 2016 | by Steven J. Tinnelly, Esq.

*New Case Law hoa-meeting-agenda

HOA board meetings are governed by the “Common Interest Development Open Meeting Act” (“Open Meeting Act”)(Civil Code Sections 4900 through 4955). The Open Meeting Act is designed to bring a sense of transparency to HOA governance, and is similar in purpose to California’s “Brown Act” (Government Code Section 54950 et seq.) which guarantees the public’s right to attend and participate in public meetings of local legislative bodies (i.e. City Council Meetings). Both the Open Meeting Act and the Brown Act include, among other procedural requirements, language regarding the notice that must be provided in advance of HOA/legislative body meetings, respectively.

In June 2015, the California Court of Appeal rendered an opinion which addressed a notice requirement under the Brown Act. In Castaic Lake Water Agency v. Newhall County Water District, et al, Castaic Lake Water Agency (“Castaic”) moved the trial court to declare void an action taken at a public meeting because the related agenda identified an incorrect Government Code section as the basis for the scheduled action to be taken at that meeting. In dismissing Castaic’s action, the Court held that substantial compliance with the Brown Act is the governing test, and that the notice given by Newhall Water District in the agenda was sufficient to inform the public of the purpose of the meeting.

The holding in Castaic applies only to public meetings of local legislative bodies, and therefore is not directly applicable to common interest developments and HOAs. However, that decision could be persuasive in a factually similar HOA context. If an action taken at a HOA Board Meeting is challenged because the agenda incorrectly cites to a provision that does not accurately identify the basis of the Board’s authority to discuss/take such action, the ‘substantial compliance’ test may be considered to rebuff that challenge. Specifically, a HOA could argue that the agenda substantially complied with the Open Meeting Act and was therefore sufficient with respect to informing the membership of the purpose contemplated by the referenced action item set forth in the agenda.

Blog post authored by TLG Attorney, Kumar Raja.

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