HOA Lawyer Blog

AB 786 Signed! Clarifying when HOAs May Fine Homeowners for Brown Lawns

Published on: October 28, 2015 | by Steven J. Tinnelly, Esq.

hoa-recycled-water *New Legislation

We have blogged about legislation enacted in 2014 that made several changes to Civil Code Section 4735 in response to California’s continuing, record-breaking drought. One of those changes served to prohibit HOAs from fining homeowners for failing to adequately water vegetation or lawns during government-declared drought periods. Earlier this year, AB 349 was signed into law to make further changes to Section 4735. One of those changes served to restore a HOA’s authority to fine homeowners for failing to water, provided that the HOA “uses recycled water…for landscaping irrigation.” (Former Civ. Code § 4735(c).)

Questions then arose as to the circumstances which would allow for a HOA to qualify for this exception and thus be permitted to fine homeowners for failing to water. For example, would a HOA have to use recycled water for all of its landscaping irrigation, or just a portion of its landscaping irrigation? To remedy this ambiguity, AB 786 was proposed this year as an urgency statute based upon the following findings by the California Legislature:

“…some homeowners associations have interpreted existing law to allow them to fine homeowners who voluntarily cease using potable water on their landscaping if the homeowners association itself is using a de minimis amount of recycled water on common areas. This is directly contrary to the state’s need to conserve the precious and dwindling water supplied for urban, agricultural, and environmental needs.”

AB 786 therefore sought to make additional amendments to Section 4735 to clarify that a HOA’s authority to fine homeowners for failing to water during drought periods extends only to situations where the homeowner’s property subject to the fine has previously received, and continues to receive, recycled water for landscaping irrigation. Thus, the Legislature illustrated its original intent to shield only those homeowners who voluntarily cease using potable water for their landscaping irrigation from being fined by their HOAs; homeowners with access to recycled water would still be subject to fines if they failed to use that recycled water for their landscaping irrigation.

AB 786 was signed into law on October 13, 2015 and its changes took immediate effect. Subdivisions (c) and (d) of Section 4735 now state in pertinent parts that:

“(c) Notwithstanding any other provision of this part, except as provided in subdivision (d), an association shall not impose a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during [government-declared drought periods]…”

“(d) Subdivision (c) shall not apply to an owner of a separate interest that, prior to the imposition of a fine or assessment as described in subdivision (c), receives recycled water…and fails to use that recycled water for landscaping irrigation.” (Emphasis added.)

AB 786 fortunately resolves yet another ambiguity that was created by rushed legislation. HOA Boards and management professionals whom are opposed to having a sea of “brown lawns” within their communities should consult with their HOA’s legal counsel for guidance.

New Client: Linea Owners Association

Published on: October 20, 2015 | by Steven J. Tinnelly, Esq.

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

Linea is a luxury mid-rise located in the Hayes Valley area of San Francisco. It was designed by world-renowned architect Bernardo Fort-Brescia, with walls of glass framed by geometric pillars, creating a prism-like effect. Residents enjoy an expansive attended lobby with Italian marble highlights, an interior courtyard with lush plantings and greenery, and a rooftop terrace with multiple areas for entertaining, barbecuing, and enjoying the city lights.

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

AB 1448 Signed! HOA Bans on Clotheslines Get ‘Hung out to Dry’

Published on: October 12, 2015 | by Steven J. Tinnelly, Esq.

hoa-clothesline *New Legislation

Many sets of HOA governing documents contain provisions that prohibit clotheslines from being hung outside of an owner’s unit and/or in any area that is visible from adjoining properties or HOA common area. AB 1448 (Lopez) was proposed earlier this year in order to limit the extent to which such provisions may be enforced. AB 1448 was based upon the belief that bans on clotheslines “prevent low-income families and energy-conscious persons from using a low-cost, low-technology energy conservation tool.” (Senate Floor Analyses, AB 1448 (09/08/15).)

AB 1448 sought to add new Civil Code Sections 1940.20 and 4750.10. Section 1940.20 would limit the degree to which landlords may prohibit the use of clotheslines or drying racks by their tenants, provided that certain conditions are met. Section 4750.10 would place similar limitations on HOAs by rendering void and unenforceable any provisions of a HOA’s governing documents that prohibit or unreasonably restrict an owner’s ability to use a clothesline or drying rack in an owner’s backyard.

On October 8, 2015, AB 1448 was approved and signed into law. As a result, effective January 1, 2016, “any provision of a [HOA’s] governing document…shall be void and unenforceable if it effectively prohibits or unreasonably restricts an owner’s ability to use a clothesline or drying rack in the owner’s backyard.” (Civ. Code § 4750.10(c).) However, as is typically the case with new legislation of this type, Civil Code Section 4750.10 will create additional questions that are not so easily answered with reference to the statutory language itself. Specifically, HOA Boards and management professionals will likely have questions concerning the following issues: (1) what qualifies as a “clothesline” or “drying rack,” (2) what area(s) must owners be permitted to utilize clotheslines or drying racks, and (3) what qualifies as a “reasonable restriction” on the use of a clothesline or drying rack that may still be imposed and enforced by a HOA. Some guidance on these issues is provided below…

New Client: Sea Ridge Condominium Association

Published on: September 17, 2015 | by Steven J. Tinnelly, Esq.

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

Sea Ridge is a condominium community located in the City of Dana Point, in close proximity to pristine beaches and the St. Regis Resort. Residents enjoy expansive ocean and greenbelt views, tennis courts, a community pool, and clubhouse.

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

Effectively Immediately! HOAs may not Prohibit Artificial Turf (Grass)

Published on: September 8, 2015 | by Steven J. Tinnelly, Esq.

hoa-artificial-grass-turf New Legislation*

In recent years the California legislature has proposed bills that would require homeowners associations (HOAs) to permit the installation of artificial turf (grass) in their communities. Those bills never made it into law, and were vetoed by the California Governor due to the Governor’s belief that “[t]he decision about choosing synthetic turf instead of natural vegetation should be left to individual homeowners associations, not mandated by state law.”

AB 349, proposed earlier this year, marked the latest attempt by the California Legislature to restrict the authority of HOAs to prohibit artificial turf. AB 349 was proposed as an urgency statute based upon the following rationale of the California Legislature:

“While in the middle of a water shortage crisis, homeowner associations are not allowing homeowners to make voluntary sacrifices and are still forcing them to maintain grass lawns, by installing artificial grass, and are fining them if they are out of compliance. [AB 349] ensures that all homeowners have the right to better conserve water by voluntarily replacing grass with artificial grass. Property owners who pursue water conservation by installing artificial grass should be encouraged, not sued or fined. Thus, this act is necessary for the immediate preservation of the public peace, health, and safety.”

The prolonged California drought has apparently lead to a reversal in the Governor’s position on this issue and AB 349 was signed into law on September 4, 2015. As a result, Civil Code Section 4735 has been amended to render void and unenforceable any provision of a HOA’s governing documents (i.e., a HOA’s architectural standards) that “prohibits, or includes conditions that have the effect of prohibiting, the use of artificial turf or any other synthetic surface that resembles grass.” (Civ. Code § 4735(a)(2).)

This language was modeled after similar protections already existing in Section 4735 for homeowners seeking to use “low-water using plants.” An additional amendment to Section 4735 as a result of AB 349’s passage includes the incorporation of new subpart (d) that protects homeowners from having to “reverse or remove” water-efficient landscaping measures that were installed in response to a government-declared drought period once the drought period concludes.

AB 349’s changes to the law take effect immediately as an urgency statute. HOA boards, architectural committees and management professionals must take note of the changes to Civil Code Section 4735. While AB 349 does not address what types of restrictions (as opposed to flat prohibitions) a HOA may place on the installation of artificial turf, HOAs should endeavor to amend their architectural standards in order to provide some guidance to homeowners on this issue and to deter the use of low quality turf materials.

Increased Maintenance Requirements for HOA Pools in California

Published on: August 31, 2015 | by Steven J. Tinnelly, Esq.

hoa-pool-water-testing The requirements for operating and maintaining “public pools” have been subject to various regulatory changes in recent years. Those changes have impacted pools within private homeowners associations (HOAs), as the California Legislature and Department of Health have defined the term “public pools” to include pools located within private HOAs and residential developments. (Health & Safety Code §§ 116049.1(a), 116064.2(a)(4)(B); 22 CCR § 65503(a)(9).) The more notable changes include those which mandate (1) new parameters for water characteristics, (2) strict monitoring of pool facilities and requirements for written records, (3) enforcement of specific safety and first aid equipment, (4) requirements that newly constructed public pool enclosures have at least one keyless exit and self closing latches, and (5) the imposition of health restrictions for employees or pool users. Some of these changes are discussed below.

Daily Testing
The most significant change is that which requires HOAs with twenty-five (25) or more separate interests to test pool and spa water chemical composition and temperature on a daily basis, and to keep a daily log of the testing. (22 CCR § 65523(a).) Daily testing may be performed “using a properly calibrated automatic chemical monitoring and control system” if allowed by local enforcing authorities. (22 CCR § 65523(a).) For HOAs with fewer than 25 separate interests, testing must be performed and documented “at least two times per week and at intervals no greater than four days apart.” (Health & Safety Code § 116048(a).)

Safety Equipment
Other notable changes deal with the installation/maintenance of safety and first aid equipment. For example, that equipment must include a 12’ minimum length rescue pole and a 17” minimum (exterior diameter) life ring with an attached throw rope having a minimum of 3/16” diameter. (22 CCR § 65540(a).)

Health Restrictions
Previous regulations prohibited persons with diarrhea from using the pool. Now, pool access must be denied to any person, including pool monitors, that have symptoms “such as a cough, cold sore, or nasal or ear discharge or when wearing bandages.” (22 CCR § 65541(b).)

Pool Enclosures; Gates & Doors
Finally, there are specific requirements in Section 3119B of the California Building Code for at least one gate/door into the pool enclosure to allow for egress, without a key, for emergency purposes. If all gates/doors allow for keyless exit, no special signage is necessary, otherwise the keyless exit(s) must have signage stating “EMERGENCY EXIT” in at least 4” high lettering.

The requirements and technicalities governing pool use and maintenance are numerous and complex. Now, more than ever, HOAs should ensure that their pool maintenance vendors are aware of these requirements and understand the need for strict compliance.

New Client: Rocking Horse Ridge Estates Homeowners’ Association

Published on: August 31, 2015 | by Steven J. Tinnelly, Esq.

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

Rocking Horse Ridge is a guard-gated community of custom estates located in the City of Orange. Residents enjoy expansive views, tennis courts, a community pool, clubhouse, playground and park.

Our HOA attorneys and staff look forward to working with Rocking Horse Ridge Estates’ Board and management.

AB 596 Signed! New FHA and VA Disclosures Required Beginning July 1, 2016

Published on: August 24, 2015 | by Steven J. Tinnelly, Esq.

hoa-fha-loans New Legislation*

Civil Code Section 5300 requires a HOA to prepare and distribute to its members an annual budget report. The annual budget report serves as a consolidated disclosure statement which must include numerous items of information, such as information pertaining to the HOA’s reserve funds, operating budget, and insurance policies.

In June of this year, we blogged about AB 596 (Daly), a bill proposed by the California Legislature that would require additional statements of information to be distributed with the annual budget report for condominium HOAs. Those statements would disclose the status of the condominium development as being a Federal Housing Administration (FHA) approved condominium project or a Department of Veterans Affairs (VA) approved condominium project.

AB 596 was signed by Governor Brown on August 12, 2015. As a result, beginning July 1, 2016, Civil Code Section 5300 will additionally require condominium HOAs to provide the following statements in at least 10-point font on separate pieces of paper that accompany the annual budget report:

“Certification by the Federal Housing Administration may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest. This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the Federal Housing Administration.”

“Certification by the federal Department of Veterans Affairs may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest. This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the federal Department of Veterans Affairs.”

The intent behind AB 596 is to ensure that condominium owners and prospective condominium owners understand the benefits of a condominium development being FHA or VA approved and how the availability of FHA or VA financing benefits the marketability of the condominium units within the development.

Industry experts have expressed concern that a HOA which was certified at the time of the disclosure may not retain that certification throughout the course of the fiscal year. However, AB 596 does not add a requirement for the disclosure statements to be revised mid-year should the HOA’s FHA or VA certification status change. FHA approval expires every two years and requires a recertification process. If a community no longer meets the FHA approval guidelines, recertification may be rejected. If approval is granted, but the FHA learns of additional factors, approval may be withdrawn. HUD does not currently have a notification system in place to inform the association that FHA approval has expired or been withdrawn.

Condominium HOA boards and managers are encouraged to regularly check for FHA Approval at the Official HUD Directory and VA Approval at the Official VA Directory to verify the current status of their communities.

New Client: Portola Hills Community Association

Published on: July 29, 2015 | by Steven J. Tinnelly, Esq.

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

Portola Hills is a planned development located in Trabuco Canyon, surrounded by the Saddleback Mountains and Whiting Ranch Wilderness Park. Residents enjoy a private recreation center, including a pool, jacuzzi, and tennis courts, as well as walking trails throughout the neighborhood.

Our HOA attorneys and staff look forward to working with Portola Hills’ Board and management.

Occupancy Limitations and Homeowners Associations

Published on: July 24, 2015 | by Steven J. Tinnelly, Esq.

On January 20, 2015, a tragic fire ripped through a condominium complex in the city of San Juan Capistrano, killing three, injuring six, and displacing eighty residents living in eight units. The decedents were three of seventeen individuals living in a four-bedroom condominium. In light of the deaths and their relation to the number of occupants living in the unit, efforts are now underway to examine state and local occupancy restrictions with an eye towards preventing an incident like this from occurring in the future. To that end, questions have surfaced with respect to an association’s ability to adopt and enforce state and local occupancy standards, as well as to promulgate operating rules regulating the number of occupants living within a unit.

An association’s “operating rules” are regulations adopted by the board that apply “generally to the management and operation of the common interest development or the conduct of the business and affairs of the association.” (Civ. Code § 4340(a)) They relate to things such as the use of common area and separate interests, member discipline, and procedures for elections. (Civ. Code § 4355(a)(1)-(7)) In order to be valid and enforceable, the operating rule must meet several requirements: the rule must be (1) in writing, (2) within the authority of the Board of Directors conferred by law or the governing documents, (3) not in conflict with governing law and the governing documents, (4) adopted in good faith and in compliance with the procedural requirements set forth in Civil Code section 4360, and (5) reasonable. (Civ. Code § 4350) Accordingly, presuming that an occupancy rule is adopted by an association’s board of directors pursuant to the powers granted to it under the governing documents, the primary focus is whether the occupancy rule conflicts with governing law (i.e., California law).

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