HOA Lawyer Blog

CA Supreme Court Expands Scope of Attorney’s Fees Awards Under Civ. Code Section 5975(c)

Published on: March 25, 2015 | by Steven J. Tinnelly, Esq.

*New Case Law

Litigation can be a time consuming and costly endeavor. These two factors typically weigh heavily against filing a lawsuit, especially where there is no ability for the party prevailing in the lawsuit to recover its attorney’s fees and costs. By default, the “American Rule” with respect to attorney’s fees awards states that each party must pay for its own attorney’s fees and costs unless otherwise provided by statute or contract. (Code Civ. Pro. § 1021.) Fortunately, in the context of homeowners associations (“HOAs”), Civil Code Section 5975(c) allows for a prevailing party in an action to enforce HOA governing documents to recover its reasonable attorney’s fees and costs. Section 5975 is a component of the Davis-Stirling Common Interest Development Act (“Act”)–the principal body of Civil Code sections governing California HOAs and common interest developments (“CIDs”).

In the recent case of Tract 19051 Homeowners Association v. Kemp (2015) 2015 Cal.LEXIS 1216 (“Kemp“), the California Supreme Court addressed the question of whether Section 5975(c) allows for a prevailing party to recover its attorney’s fees and costs in a lawsuit brought under the Act even where the HOA in the lawsuit is not a CID and thus technically not subject to the Act…

New Client: Spanish Walk Community Association

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

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

Spanish Walk is a gated, master planned community with condominiums and single family homes. The community amenities include two pools and spas, fitness center, playground areas, billiard room, beautifully designed clubhouse with an equipped kitchen and large greenbelt nestled in Spanish style architecture and landscape.

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

Expanded Emergency Regulation: Prohibited Irrigation Activities

Published on: March 18, 2015 | by Steven J. Tinnelly, Esq.

*New Regulations

The prolonged period of drought in California has resulted in numerous regulatory and legislative changes aimed at addressing the water shortage (i.e., legislation regarding low-water using plants and watering during droughts). On March 17, 2015, the State Water Resources Control Board adopted an expanded emergency regulation to safeguard California’s remaining water supplies.

Under the expanded emergency regulation, additional prohibitions on potable water use have gone into immediate effect. All Californians are now prohibited from using potable water to:

Wash down sidewalks and driveways;
Water outdoor landscapes in a manner that causes excessive runoff
Washing a motor vehicle with a hose, unless the hose is fitted with a shut-off nozzle:
Operating a fountain or decorative water feature, unless the water is part of a recirculating system; and
Irrigating turf or ornamental landscapes during and 48 hours following measurable precipitation (*New)

The newly adopted prohibition on irrigating turf/landscapes during and 48 hours following precipitation (rain) may impact the common area maintenance/irrigation practices of HOAs. Failure to comply with that provision could subject a HOA to a fine of $500 per day.

To read more about the emergency regulation, click here.

New Client: Cariz Homeowners Association

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

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

Cariz is a brand new community in the Village of Portola Springs in the City of Irvine. Spanish and Santa Barbara architecture create timeless curb appeal at Cariz by TRI Pointe Homes, a fresh collection of attached homes featuring hard-to-find single-level living and three-story plans that blend open design with relaxed sophistication. As part of the Village of Portola Springs, homeowners will enjoy proximity to the new Center Terrace Park with resort-inspired amenities and recreation.

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

Hardwood Flooring & ‘Nuisance’ Noise

Published on: March 9, 2015 | by Steven J. Tinnelly, Esq.

*New Case Law

Homeowners within condominium developments are typically granted broad authority in making improvements to the interior of their respective Units that do not require modification of association common area. However, because of the way in which condominium projects are built, certain improvements made within a Unit may ultimately impact the quiet use and enjoyment of neighboring homeowners (i.e., sound transmissions from hardwood or hard surface flooring). As indicated by the recent case of Ryland Mews Homeowners Association v. Munoz (2015) 234 Cal.App.4th 705 (“Ryland“), to the extent that a homeowner’s interior improvements result in a nuisance to neighboring homeowners, an association does have the authority to compel the homeowner to modify or remove the improvements as necessary to abate the nuisance…

New Client: Discovery at Cortez Hill Homeowners Association

Published on: March 3, 2015 | by Steven J. Tinnelly, Esq.

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

Discovery is a luxury high-rise perched at the top of the Cortez Hill neighborhood. It features a three-level parking structure, a business office with fax and computers for residents, 24-hour concierge service, an elegant lobby, rooftop deck, and social lounge. The 10th-floor features a lap pool, outdoor spa and barbecue area, plus an extensive fitness center with sauna and steam room.

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

Personal Food Gardens Becoming a Nuisance?

Published on: February 5, 2015 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Fallen and decayed vegetables from a homeowner’s garden are attracting numerous rats and other pests. With the new law permitting personal food gardens, is there anything our HOA can do to address this issue?

Answered – Probably. AB 2561, effective January 1, 2015, added Section 1940.10 and 4750 to the Civil Code. In sum, Section 4750 grants homeowners within HOAs the right to use their backyards for “personal agriculture,” regardless of any provisions contained in a HOA’s governing documents to the contrary. However, that right is not absolute. HOAs still have some authority to restrict and regulate personal food gardens in the following respects:

Personal Use/Donation Only – The crops must be grown for personal use or donation. Crops grown for sale or other commercial purposes do not fall within the definition of “personal agriculture” for the purposes of Section 4750.
No Marijuana or Unlawful Substances – There is no right for a homeowner to grow “marijuana or any unlawful crops or substances,” as those items do not constitute a “plant crop” permitted by Section 4750.
Only on Owner Property or Exclusive Use Common Area – The right to keep and maintain personal food gardens extends only to the owner’s backyard or areas designated for the exclusive use of the homeowner (i.e., exclusive use common area patios), not general HOA common areas.
Reasonable Restrictions Permitted – The HOA may still impose “reasonable restrictions” on the use/maintenance of homeowner’s yard for personal agriculture. “Reasonable restrictions” are those that “do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.”
Clearance of Dead Plant Materials and Weeds – Section 4750 still allows for HOAs to apply rules and regulations requiring that “dead plant material and weeds, with the exception of straw, mulch, compost and other organic materials” that encourage vegetation and soil moisture retention, be regularly cleared from the backyard. A rule or regulation requiring such clearance may be successful in resolving your rodent and pest problem.

As indicated above, the right to have a personal food garden would not necessarily insulate a homeowner from his obligation to comply with related provisions of a HOA’s governing documents that serve as “reasonable restrictions” on the use of a yard for personal agriculture. For example, virtually every set of CC&Rs contains a provision prohibiting homeowner from conducting any activity on their property that poses a nuisance to neighboring homeowners. If the way in which a homeowner’s food garden is being maintained is resulting in a nuisance (i.e., attracting rats and other pest populations), the nuisance provision would likely constitute a “reasonable restriction” that the HOA may enforce against the homeowner.

In addition to the issues noted above, HOAs may, in some instances, have the authority to restrict food gardens that violate other provisions of the Association’s governing documents that serve as “reasonable restrictions” allowable under Section 4750 (i.e., a height limitation within the HOA’s landscaping standards may serve to prohibit crops that grow to unreasonable heights). HOA Boards that are encountering problems with food gardens should consult with their legal counsel for guidance as to how their governing documents may be tailored to address these types of issues.

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

New Client: Antigua Owners Association of Monarch Beach

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

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

Antigua is set high up on the cliffs of Dana Point in the guard-gated community of Monarch Beach. The community consists of beautiful contemporary architecture around the award-winning St. Regis Golf Course and Hotel. The city is known as “the most romantic spot on the California Coast”. With over 7 miles of beautiful beaches and award-winning hotels and golf-courses, Antigua residents enjoy some of the best views in all of California.

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

AB 2430 Signed: HOA Transfer Disclosure Docs; Seller Paid Fees

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

*New Legislation

Civil Code Section 4530 sets forth the responsibility of homeowners associations (“HOAs”) to provide copies of governing documents, financial disclosures and other documents to a homeowner (or a homeowner’s authorized agent) within ten (10) days of a receipt of a request for those documents. This applies in the context of a sale of a property (a unit or lot) within a HOA. The documents to be produced are identified in Civil Code Section 4525, and are commonly known as “Transfer Disclosure Documents.”

Section 4530 does provide a HOA with the right to “collect a reasonable fee” based upon its efforts in producing, preparing and delivering Transfer Disclosure Documents. However, in satisfying this request and in seeking reimbursement, disputes would sometime arise as to whom should pay the fee (i.e., should it be the seller of the property or the prospective purchaser).

Fortunately, AB 2430 (Maienschein), effective January 1, 2015, has amended Section 4530 to specify the seller’s obligation to compensate the HOA for the aforementioned fee. Other notable changes in the law that will result from AB 2430 include:

The HOA must provide an estimate of the fees that will be assessed in producing the Transfer Disclosure Documents, prior to producing them.
The fees must be “separately stated” and “separately billed” from all other fees, fines or assessments that are billed as part of the transaction.
The Transfer Disclosure Documents may not be bundled with any other documents.
If the seller is in possession of any Transfer Disclosure Documents, the seller is required to provide copies to the prospective purchaser at no cost.
The form used for estimating the fees, as described in Civil Code Section 4528, is amended to include the following within the rightmost column of the form: “Not Available (N/A), Not Applicable (N/App), or Directly Provided by Seller and confirmed in writing by Seller as current document (DP).”

AB 2430’s primary benefit is in clarifying the party responsible for a HOA’s costs in producing the Transfer Disclosure Documents (the seller). This should prevent needless billing disputes that hinder property transfers within HOAs. However, HOA Boards and especially management professionals should recognize the need to provide the estimate of fees via the Section 4528 form before producing the Transfer Disclosure Documents, and that failing to do so may inhibit the HOA’s ability to ultimately recovery them.

HOAs Required to Accept Partial Payments from Delinquent Homeowners

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

*New Case Law

Collecting delinquent assessments remains one of the more challenging and frustrating aspects of a homeowners association’s (“HOA’s”) operations. Once a delinquent file is forwarded to a HOA’s collection company or law firm, industry practice has been to reject any partial payments made by the delinquent homeowner (i.e., to reject any payments that do not cover all of the delinquent assessment amount, including late fees, interest, collection costs, etc.) that have accrued on the homeowner’s account. That approach has been based upon the language set forth in Civil Code Sections 5655 and 5720. Civil Code Section 5720 allows for a HOA to foreclose on a delinquent assessment lien only where the delinquent assessment amount is $1,800 or greater, or are more than 12 months delinquent. Civil Code Section 5655, however, sets forth the way in payments made by a delinquent homeowner must be allocated (i.e., first to the delinquent assessment amount, then to collection fees, late charges, etc.).

Accordingly, if a homeowner is allowed to make a series of partial payments that must first be applied to the delinquent assessment amount, the homeowner could structure a way in which to avoid foreclosure of his property (i.e., through keeping the delinquent assessment amount under $1,800 or under 12 months delinquent), while not paying all or any of the amounts necessary to cover the HOA’s collection fees and costs it has incurred in connection with the homeowner’s delinquency. This would ultimately place the HOA in a difficult position of having to incur more collection fees and costs solely to collect the unpaid collection fees and costs which the HOA has already incurred. Thus, collection companies and firms have traditionally rejected partial payments in order to avoid this problem–especially in light of the absence of any language in the Civil Code explicitly requiring HOAs to accept partial payments. If the homeowner desires to provide partial payments, the only opportunity to do so would be pursuant to a payment plan executed between the homeowner and the HOA.

However, a recent decision from the Fourth District, Division Three, of the California Court of Appeal has indicated that HOAs do indeed have an affirmative obligation to accept partial payments notwithstanding the concerns referenced above…

HOA Lawyer BLog