We are proud to announce that Tuscany at Porter Ranch Community Association has selected Tinnelly Law Group as their association’s legal counsel.
Tuscany is a private gated community in Porter Ranch which includes Cortile. It consists of single family homes ranging from 900-1600 sq. ft.
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Our HOA attorneys and staff look forward to working with Tuscany’s Board and management. |
*New Legislation
Provisions of the Davis-Stirling Common Interest Development Act (Civ. Code §§ 4000 – 6150) currently require homeowners associations (“HOAs”) to “provide a fair, reasonable, and expeditious procedure for resolving a dispute” between a HOA and its members. Civ. Code §§ 5900, 5905. This procedure is commonly referred to as “Meet and Confer” or “Internal Dispute Resolution” (“IDR”). Its purpose is to provide a non-adversarial forum where a HOA member and a HOA Director can meet informally to see if a resolution to the dispute can be secured short of involving attorneys and taking legal action.
However, the passage of AB 1738 (Chau) will upset this non-adversarial and informal structure through providing a member with the right to have the member’s attorney present at the IDR meeting. While this may not seem problematic, HOAs and industry professionals that are familiar with the IDR process understand that AB 1738 will undoubtedly result in HOAs incurring greater attorney’s fees to resolve member disputes. CAI’s California Legislative Action Committee’s (CAI-CLAC) “Call to Action” on AB 1738 illustrated its inherent problems:
“AB 1738 encourages members to bring attorneys and others to their first meeting with a single board member who has volunteered to help work out the member’s problem or concern. These simple ‘meet-and-confer’ conversations over coffee most often resolve an issue. When they occasionally don’t, either party may pursue a more formal Alternative Dispute Resolution (ADR) process that does involve lawyers. Nothing in law prevents lawyers from attending IDR right now, but AB 1738 actually promotes having them present to argue the issue(s). This will invariably make the discussion adversarial…
…If a member brings an attorney [to IDR], the HOA will very likely bring an attorney. At $300 per hour, each IDR will cost HOAs a minimum of $900 when one considers the lawyer’s time preparing, attending and any follow-up actions. [AB 1378] will end up increasing assessments.”
These sentiments were echoed by the Educational Community for Homeowners (ECHO) in its opposition to AB 1738: “By default, associations will bring their attorneys to IDR. In order to protect themselves, owners will also bring their attorneys. This increases the expenses for both parties, and encourages an adversarial atmosphere.”
IDR is not mediation, but an informal meeting between the member and at least one (1) HOA Director. As such, the communications during the IDR meeting are generally not subject to the confidentiality requirements that cover the more formal “Alternative Dispute Resolution” (“ADR”) process. AB 1738 could allow for the communications and documents discussed at IDR to be admissible in future litigation, and thus serve as a significant problem for the HOA. This is one reason why our office, along with the majority of HOA attorneys, are advising our HOA clients engaged in IDR with a member to close and reschedule the IDR meeting if the member unexpectedly brings their attorney to the IDR meeting. If the member is represented by an attorney, the HOA should ensure that it is as well. Rescheduling the IDR meeting so that the HOA’s attorney can also be present is vital to protecting the HOA’s interests.
Despite overwhelming HOA industry opposition to AB 1738, it was signed into law by Governor Brown on September 18, 2014, and will take effect January 1, 2015. To read the text of AB 1738 and how it will amend the current provisions of Civil Code Sections 5910 and 5915, click here.
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AB 1738 represents a tremendous setback for HOAs and their members in their efforts to resolve disputes in a quick and cost-effective manner. Where those efforts fail, the parties are free under current law to move to ADR (a form of mediation) in order to involve attorneys and see if a resolution can be secured short of litigation. As a result of AB 1738, HOA Boards of Directors and management professionals must be cognizant of the problems that could arise if a member’s attorney attends the IDR meeting without the HOA’s attorney also being present. HOAs seeking specific guidance and recommendations on this issue should consult their legal counsel. |
We are proud to announce that Heritage Ranch Maintenance Association has selected Tinnelly Law Group as their association’s legal counsel.
Heritage Ranch is a brand new neighborhood in the city of Winchester being developed by Beazer Homes. Located minutes from Temecula, Heritage Ranch in the French Valley offers the best of the Temecula Valley. Residents will enjoy spending the day strolling through old town Temecula or touring the wineries in the area.
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Our HOA attorneys and staff look forward to working with Heritage Ranch’s Board and management. |
*New Legislation
We have previously blogged about several bills being considered by the California Legislature relating to drought relief. Among them was AB2104 (Gonzales), which has now been signed by Governor Brown and will take effect January 1, 2015. In sum, AB2104 will expand upon the limitations placed upon Homeowners Associations (“HOAs”) in their efforts to regulate “low water-using plants,” as well as incorporate an Executive Order signed by Governor Brown in April of 2014 that prohibits HOAs from fining homeowners for reducing/eliminating the watering of lawns during declared drought periods.
Section 4735 of the California Civil Code previously stated that any provision of a HOA’s governing documents is void and unenforceable to the extent that it “prohibits, or includes conditions that have the effect of prohibiting, the use of law-water using plants as a group.” AB2104 will expand on this language by also voiding any governing document provision (including those contained in a HOA’s architectural or landscaping guidelines) that “prohibits, or includes conditions that have the effect of prohibiting, the use of low-water using plants as a group or as a replacement for existing turf.” (Emphasis added.) Additionally, the inability for HOAs to fine homeowners for failing to adequately water vegetation or lawns during state or local government-declared drought periods will be codified under new subpart (c) to Section 4735.
To read the chaptered text of AB2104 and the portions of Section 4735 which will be amended, click here.
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In the wake of AB2104, questions have surfaced regarding the extent to which HOA’s may still restrict or prohibit the installation of artificial turf. We have previously blogged about this issue, and how artificial turf likely does not constitute a “plant” within the meaning of Section 4735. Additionally, bills which have been proposed by the California Legislature in the past to require HOAs to permit the installation of artificial turf have been vetoed by California governors and ultimately never made it into law. It is unlikely that AB2104 addresses this issue or will otherwise limit the authority of HOAs to regulate or restrict the installation of artificial turf within their communities. |
We are proud to announce that Griffin Ranch Homeowners Association has selected Tinnelly Law Group as their association’s legal counsel.
Griffin Ranch is a brand new neighborhood in the city of La Quinta being developed by Lennar Homes. Griffin Ranch features two collections of luxury single family homes. Surrounded by picturesque views of the Santa Rosa Mountains, large spacious living spaces, fully appointed amenities and a manned guard gate amplify the allure of Griffin Ranch living in La Quinta!
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Our HOA attorneys and staff look forward to working with Griffin Ranch’s Board and management. |
For many associations with a December year end, September marks the first opportunity for the board of directors to review the first draft of the budget and disclosures materials. As of January 1, 2014, changes to the Davis-Stirling Act now require that budget documents and disclosures be distributed in the form of the Annual Budget Report and the Annual Policy Statement.
Civil Code §5300 requires the Annual Budget Report (“Report”) be distributed to the membership 30-90 days prior to the fiscal year end. Unless the governing documents provide for more stringent standards, the Report must now include the following documents:
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We are proud to announce that Wildflower Community Association has selected Tinnelly Law Group as their association’s legal counsel.
Wildflower is a brand new neighborhood in the city of Moreno Valley being developed by D.R. Horton. The community features single and two-story floorplans with square footages ranging from 2,472 to 3,614 and up to 6 Bedrooms and 4.5 Baths. Each residence includes an open Kitchen and Great Room layout. The exteriors will be enhanced with Spanish, Mediterranean, Craftsman and Tuscan architecture and highlighted with decorative stone, wood corbels or attractive shutter treatments per plan.
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Our HOA attorneys and staff look forward to working with Wildflower’s Board and management. |
*Asked & Answered
Asked – We have continued problems with unruly, unsupervised, and destructive children in our community’s common areas. They ride motorized scooters, skateboards, bikes, etc. all throughout our walkways and have collided with people and animals on several occasions. Our property manager said that nothing can be done because any rules aimed at restricting such conduct would be “discriminatory” against children. What are our HOA’s options?
Answered – It is true that Federal and California courts have applied anti-discrimination laws, such as the Fair Housing Act, to homeowners associations (HOAs) in order to prohibit them from discriminating against families with children. There are exceptions, however, in instances where a seemingly discriminatory policy/rule is designed to address legitimate health or safety concerns. Thus, for example, the HOA should be able to adopt a set of operating rules restricting scooters, skateboarding, bicycling etc. in certain common areas where those activities represent a significant threat of personal injury or property damage. Provided that those rules do not single out “children,” but instead apply to all persons in the community, they would likely be deemed reasonable and enforceable pursuant to Civil Code Section 4350.
Additionally, most sets of CC&Rs contain provisions restricting acts which constitute a nuisance. Thus, even in the absence of specific operating rules of the type referenced above, your HOA may still have the ability to address the activities at issue through enforcement of the nuisance provision contained in its CC&Rs.
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Your HOA’s Board of Directors should evaluate the situation and determine if there are legitimate health and safety concerns resulting from the activities and/or if those activities are resulting in a violation of the nuisance provision contained in the CC&Rs. If the Board makes a good faith determination that the HOA should take action, it should consult with the HOA’s attorney for guidance as to what enforcement options are available, and how the HOA may adopt or modify its operating rules to restrict specific activities in the common areas. |
Blog post authored by TLG attorney, Terri Morris.
To submit questions to the HOA attorneys at Tinnelly Law Group, click here.
We are proud to announce that The Orchards Community Association has selected Tinnelly Law Group as their association’s legal counsel.
The Orchards is located in Tustin Ranch, within walking distance to shopping, dining, and theaters in the Marketplace. Residents enjoy using the community pool, spa, tennis courts, and access to nearby Greenway Park.
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Our HOA attorneys and staff look forward to working with The Orchards’ Board and management. |
An easement provides an individual with the legal right to a specific and definable use of another’s property. A homeowners association’s (“HOA’s”) governing documents (i.e., “CC&Rs”) often provide numerous easement rights to its members for access and use of the HOA’s common areas and recreational facilities. While those easement rights are reserved for the benefit of the HOA’s members, their guests and tenants residing in the HOA’s development, it is not uncommon for non-residents and general members of the public to utilize HOA common area facilities such as walkways, trails and parks. HOAs may run into issues when trying to exclude non-residents from those areas, and may be reluctant to take more formal measures needed to do so (i.e., the installation of controlled access gates, the use of security personnel, etc.).
However, if a HOA fails to take such measures and fails to actively prohibit non-residents from accessing the HOA’s common area facilities, the open and consistent use of those facilities by non-residents may ultimately result in the creation of “prescriptive” easement rights for those non-residents. In the recent unpublished decision in Applegate Properties, Inc. v. Coronado Cays Homeowners Association (“Applegate“), the California Court of Appeals held that such prescriptive easement rights had been created over the common area of the Coronado Cays Homeowners Association (“Association”).
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