HOA Lawyer Blog

New Client: Wildflower Community Association

Published on: August 26, 2014 | by Steven J. Tinnelly, Esq.

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.

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

Riding Motorized Scooters in HOA Common Areas?

Published on: August 19, 2014 | by Steven J. Tinnelly, Esq.

*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.

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.

New Client: The Orchards Community Association

Published on: August 4, 2014 | by Steven J. Tinnelly, Esq.

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.

Our HOA attorneys and staff look forward to working with The Orchards’ Board and management.

Non-residents Accessing HOA Property? Be Wary of Prescriptive Easements

Published on: July 30, 2014 | by Steven J. Tinnelly, Esq.

hoa-gate 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”).

TLG Expansion: New Greater Los Angeles Area Office!

Published on: July 14, 2014 | by Steven J. Tinnelly, Esq.

The Tinnelly Law Group is proud to announce the opening of its newest office location in Downtown Los Angeles, California.

The opening of the L.A. office is in response to our rapidly expanding Greater Los Angeles Area client portfolio. Our attorneys and staff are already beginning to enjoy the working relationships we are developing with our L.A. clients and their management. Our new downtown location will assist in providing them with the responsive and personalized service for which we are known.

Our US Bank Tower office is located in the heart of Downtown Los Angeles in the premier Class A glass and stone building. At 1017 feet, it is the tallest building west of Chicago and east of Hong Kong, and perhaps symbolized the final rung in L.A.’s climb toward world city status. Over 73 stories tall, it has sweeping 360-degree views of the city.

We thank all of our clients and industry partners for their continued support.

HOA Restrictions on Electronic Cigarettes (E-Cigs)

Published on: July 9, 2014 | by Steven J. Tinnelly, Esq.

The popularity of electronic cigarettes (“E-Cigs”) has increased in recent years. In light of unknown health risks, many state and local governments are passing laws restricting the sale and use of E-Cigs. Homeowners Associations (“HOAs”) are following this trend and adopting rules prohibiting their use in common areas.

Questions have surfaced regarding the extent to which a HOA’s operating rules that already prohibit smoking in certain areas may be applied to restrict E-Cig use as well. Most sets of operating rules do not explicitly define “smoking.” Additionally, while the California Legislature is attempting to include E-cigs under the traditional restrictions applicable to cigarettes, no statute has been enacted that does so.

HOAs that desire to treat E-Cigs the same as traditional tobacco smoking products should amend their operating rules accordingly. Such action may be done at the Board’s discretion, pursuant to the rule change procedures required under Civil Code Section 4360 (i.e., provide general notice of the proposed rule change at least thirty (30) days before making the rule change, the decision on the rule change must be made at a board meeting, and after the decision is made, general notice of the rule change must be provided to the members within fifteen (15) days). However, prohibiting E-Cig use in the interior of the members’ separate interests (i.e., not just in the common areas or exclusive use common areas) may require a formal amendment to the HOA’s CC&Rs rather than a mere change to its operating rules.

In light of the trend of state and local governments, as well as the unresolved questions concerning the health impacts of E-Cigs, operating rules that prohibit or restrict E-Cig use in common areas would likely be deemed “reasonable,” and thus valid and enforceable. Additionally, HOA boards and management professionals should not disregard complaints from members regarding E-Cig “vapor” transmission, as we have blogged previously about how disregarding complaints dealing with second-hand smoke transmission can expose a HOA and its management company to substantial liability. In the presence of such complaints, a HOA should consult with its legal counsel for guidance.

Blog post authored by TLG attorneys Matt Plaxton and Steve Tinnelly.

New Client: New Chase Homeowners Association

Published on: July 3, 2014 | by Steven J. Tinnelly, Esq.

new chase.png We are proud to announce that New Chase Homeowners Association has selected Tinnelly Law Group as their association’s legal counsel.

New Chase HOA is a private gated community near Mile Square Park and the Santa Ana River Trail in Fountain Valley.

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

Inspection and Copying of Association Records

Published on: July 1, 2014 | by Steven J. Tinnelly, Esq.

*New Library Article

There are numerous records and items of information maintained and generated by a homeowners association (“HOA”) in the course of its operations. It is common for a HOA member to request copies of such records and information, especially in connection with an ongoing dispute the member may have with the HOA. Upon receipt of such a request, HOA boards and management professionals often have questions concerning the scope of the HOA’s responsibilities in responding to the request and in ultimately providing the member with the requested records and information.

The California Civil Code contains several provisions governing (1) the degree to which a HOA member is entitled to inspect and to copy certain “association records,” (2) the degree to which certain association records are not subject to inspection or copying by a member, and (3) the process through which the HOA must produce or provide access to its records in response to a member’s request. This blog post provides an overview of these provisions, as well as some general guidance for HOA boards and management professionals on this issue.

*Note: Our attorneys have also published this information in a new article entitled “Inspection and Copying of Association Records” that is available for download from our Web site’s library.

New Client: SkyRidge Community Association

Published on: June 26, 2014 | by Steven J. Tinnelly, Esq.

We are proud to announce that SkyRidge Community Association has selected Tinnelly Law Group as their association’s legal counsel.

SkyRidge is a brand new neighborhood in the city of Riverside being developed by William Lyon Homes. SkyRidge will offer family-oriented homebuyers the opportunity to enjoy a spacious move-up new residence in the desirable Woodcrest area of Riverside. One and two-story single-family detached homes will range from approximately 2,575 to 3,803 square feet, with up to six bedrooms, large great rooms, three-car garages and optional rear yard loggias. Generous home sites with minimum lot size of 10,000 square feet will appeal to homebuyers who enjoy outdoor dining and entertaining. Many homesite locations will also afford distant views of the San Gabriel Mountains.

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

HOAs Prohibited from Fining Homeowners for Failure to Water

Published on: June 19, 2014 | by Steven J. Tinnelly, Esq.

In its third consecutive year of severe drought, California faces a historic water shortage and wildfire danger. According to Mashable.com and US Drought Monitor, “The entire state is in some stage of drought, with 77% of the state suffering from ‘extreme’ to ‘exceptional’ drought conditions.” Matters are expected to worsen, as California continues to experience its hottest year on record.

In response to these conditions, Governor Brown signed an Emergency Drought Proclamation in January 2014 declaring a state of emergency and calling upon all Californians to voluntarily reduce their water usage by 20 percent. As residents of homeowners associations (“HOAs”) began responding to the Governor’s plea by reducing their irrigation, HOAs fined their members for failure to maintain their yards in accordance with the governing documents. This led to swift action by both the Governor and the California Legislature.

In April, Governor Brown signed an Executive Order which effectively prohibits HOAs from fining, or threatening to fine, homeowners “who comply with water conservation measures.” The Order further provides that “any provision of the governing document, architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water-saving measures contained in this directive.” One of these water-saving measures is to limit outdoor watering to no more than twice per week.

The California Legislature is also considering three bills related to drought relief, which would impact HOAs. AB 2100 (Campos) and SB 992 (Nielsen) would prohibit HOAs from imposing a fine or assessment against a member for reducing or eliminating water of vegetation or lawns during a Governor-declared state of emergency, or a local government-declared emergency, due to drought. If passed, these bills would take effect immediately as urgency statutes. AB 2104 (Gonzalez) would provide that a provision of the governing documents, including the architectural or landscape guidelines, is void and unenforceable if it would have the effect of prohibiting low water-using plants as a group, or as a replacement of existing turf, or if it has the effect of restricting compliance with water conservation measures. The California Legislative Action Committee (“CAI-CLAC”) continues to seek amendments to these bills as they work their way through the legislature.

It is important to note that both the Proclamation and the pending legislation are limited to periods of a Governor-declared drought. HOAs are still permitted to enforce other landscape maintenance issues, such as weeds, brush, tree trimming, etc. In addition, HOAs may continue to enforce irrigation provisions, provided they are within the parameters outlined in the Order or as set forth by the local water agency. HOAs considering changes to their architectural or landscape guidelines should seek the advice of their legal counsel.

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

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

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