HOA Lawyer Blog

HOA Managers Not ‘Contractors,’ But Beware…

Published on: October 1, 2013 | by Steven J. Tinnelly, Esq.

*New Legislation

We have previously blogged about the introduction of SB 822 by the California Legislature earlier this year. SB 822, in part, clarifies recent amendments to the California Business and Professions Code relating to “contractors” whom are required to be licensed by the state. The clarifying language was introduced in the wake of the confusion and concern that had surfaced regarding whether community association (“HOA”) managers were required to hold a contractor’s license in order to perform common tasks such as obtaining bids and overseeing the progress of ongoing construction work.

Thanks to the efforts of CAI’s California Legislative Action Committee (“CLAC”), SB 822 was recently signed into law by Governor Brown and will take effect January 1, 2014. SB 822 adds the following provision to Section 7026.1(b) of the Cal. Bus. & Prof. Code:

“The term “contractor” or “consultant” does not include a common interest development manager, as defined in Section 11501, and a common interest development manager is not required to have a contractor’s license when performing management services, as defined in subdivision (d) of Section 11500.”

However, this does not mean that HOA managers should interpret this language as a “green light” to act as de facto construction managers. Doing so could expose the HOA, the manager and the management company to liability in the event a construction project goes south. How then can a HOA manager and Board avoid this problem without having to hire an independent construction manager for every project?…

New Client: Metrome Homeowners Association

Published on: September 17, 2013 | by Steven J. Tinnelly, Esq.

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We are proud to announce that Metrome Homeowners Association has selected Tinnelly Law Group as their association legal counsel.

Metrome is a mid-rise urban building in the East Village neighborhood of San Diego. Residents are treated to luxurious color palettes and designer touches. Amenities include a fitness studio, underground parking, a clubhouse, and a Zen-inspired water feature.

Our HOA attorneys and staff are privileged to have the opportunity to work with Metrome’s Board and Management.

Who is Entitled to Attend Board Meetings on an Owner’s Behalf?

Published on: September 3, 2013 | by Steven J. Tinnelly, Esq.

*New Case Law hoa meeting

Membership rights with regard to the attendance and participation in Board meetings is an important component of the laws governing homeowners associations (“HOAs”). Civil Code Section 1363.05, known as the “Common Interest Development Open Meeting Act,” states that “any member of the [HOA] may attend meetings of the board of directions…” This right is central to keeping HOA members apprised of the issues affecting their community and the ways in which the Board is discharging its duties under the HOA’s governing documents.

However, one issue that surfaces from time to time deals with the extent to which a HOA is required to allow a member to attend a Board meeting with her attorney, or to allow the member’s attorney or agent to attend the Board meeting on the member’s behalf. This issue may be complicated further if the owner of a property (the “member” under the HOA’s governing documents) is an entity (i.e., a business organization or family trust).

Fortunately, the recent case of SB Liberty, LLC v. Isla Verde Association, Inc. (“SB Liberty”), will help resolve this issue and will provide valuable guidance for HOAs moving forward…

New Client: Nazareth Plaza

Published on: August 19, 2013 | by Steven J. Tinnelly, Esq.

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We are proud to announce that Nazareth Plaza Owners Association has selected Tinnelly Law Group as their association legal counsel.

Nazareth Plaza is a 4-story mixed-used building in San Mateo. Commercial and residential units wrap around a secluded interior courtyard filled with lush landscaping, water fountains and waterfalls. Within walking distance to numerous restaurants, cafes and retail stores, this modern urban building also offers residents a fitness center, underground parking, and roof terraces.

Our HOA attorneys and staff are privileged to have the opportunity to work with Nazareth Plaza’s Board and Management.

HOA Collection Procedures: Strict Compliance Required

Published on: August 12, 2013 | by Steven J. Tinnelly, Esq.

*New Case Law hoa foreclosure

The California Civil Code requires community associations (“HOAs”) to levy regular and special assessments as necessary to perform the HOA’s obligations under its governing documents. However, when a homeowner fails to pay those assessments, HOAs are often left with no alternative other than to pursue the owner in accordance with the collection methods sanctioned under the HOA’s governing documents and the Civil Code. Because those methods could result in the foreclosure of the delinquent homeowner’s property, it is paramount that HOAs strictly comply with the statutory procedures and requirements applicable to assessment collection (i.e., transmittal of notices, dispute resolution procedures, votes to initiate foreclosure, etc.).

The recent case of Diamond v. Casa Del Valle Homeowners Association 2013 DJDAR 9176, which has been certified for publication, illustrates how failing to comply with those procedures and requirements can result not only in the invalidation of a HOA’s assessment lien, but also an award of attorney’s fees and costs to the delinquent homeowner…

TLG Secures Favorable Settlement and Obtains a 100% Attorneys’ Fees Award for HOA Client in Newport Beach

Published on: August 1, 2013 | by Steven J. Tinnelly, Esq.

accolade ribbon-blog.png The Tinnelly Law Group has secured a favorable settlement in a breach of contract case for one of our HOA clients located in Newport Beach, California.

The Defendant homeowner was refusing to grant the HOA access to the Owner’s condominium unit for the limited purpose of placing a protective safety barrier between the sliding glass balcony door and the balcony while the HOA performed structural repairs to the underside of the balcony. After Internal Dispute Resolution failed and all efforts were exhausted to secure a non-judicial resolution, the HOA was forced to file a lawsuit seeking injunctive relief. After securing injunctive relief for our client, our attorneys then obtained a 100% attorneys’ fees and costs award. Such 100% attorneys’ fees awards are incredibly rare.

The Tinnelly Law Group strives to resolve our clients’ disputes through non-judicial means wherever possible. However, when issues do result in litigation, our clients take comfort in knowing that our attorneys provide the highest quality representation available, and that our entire team remains committed to securing the best possible outcome.

Equal Access to HOA Media Outlets During Election Campaigns

Published on: July 29, 2013 | by Steven J. Tinnelly, Esq.

*New Case Law

As is a common occurrence for HOA Boards, there is often difficulty in obtaining the HOA members’ consent that is required for taking such actions as amending the HOA’s governing documents or undertaking capital improvements. Failure to obtain the members’ consent–whether it is a result of member apathy or disagreement with the Board’s position–often results in wasted resources that were expended in conducting the election procedures required under California law. HOA Boards are therefore always looking for ways in which they can educate the members on the Board’s position and the reasons why the Board believes that the membership should vote a particular way in the upcoming election.

HOA Boards may therefore seek to utilize media outlets such as the HOA’s website and newsletters, as well as posting notices in HOA common areas, in an effort to garnish member support for the Board’s position. However, when such “advocacy” efforts are made as part of an election campaign, California Civil Code Sections 1363.03(a)(1) and (a)(2) require the HOA to provide equal access to its media outlets and common areas to all members who may be advocating opposing points of view. Where the HOA fails to provide such equal access, Civil Code Section 1363.09(a) allows a court to void the election results and even impose civil penalties.

This was the issue in the recent case of Wittenberg v. Beachwalk Homeowners Association, where the court held that a HOA’s election results could be invalidated based upon the fact that the HOA Board had failed its duty to provide homeowners with the type of equal access contemplated by the Civil Code…

New Client: Tetherwind at the Preserve at Chino

Published on: July 17, 2013 | by Steven J. Tinnelly, Esq.

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We are proud to announce that Tetherwind at The Preserve at Chino has selected Tinnelly Law Group as their association legal counsel.

Tetherwind is part of the master-planned community, “The Preserve at Chino.” Tetherwind’s residents have access to a wealth of recreation options, including winding trails, acres of parks, a swimming pool, fitness center, theater and library. The Parkhouse serves as the social and recreation hub for this beautiful community.

Our HOA attorneys and staff are privileged to have the opportunity to work with Tetherwind’s Board and Management.

Dealing with Homeowner Delay in ADR Scheduling

Published on: July 10, 2013 | by Steven J. Tinnelly, Esq.

hoa adr.jpg *Asked & Answered

Asked – My HOA previously sent out an ADR request to a homeowner which was accepted shortly thereafter. The HOA has been attempting to schedule the ADR by providing the homeowner with numerous dates and times that worked for the HOA. However, the homeowner has rejected all offered dates and is demanding that the ADR take place at the end of the 90 day period set forth in the Civil Code. Is the HOA obligated to schedule the ADR as far out as possible per the homeowner’s demands?

Answered – No. California Civil Code Section 1369.540(a) simply provides that upon acceptance of a request to participate in Alternative Dispute Resolution (“ADR”), “the parties shall complete the [ADR] within 90 days.” Though it is not explicitly stated, both parties have an obligation to act reasonably and in good faith in their efforts to schedule the ADR within the statutory deadline. If the HOA offers the homeowner a range of available dates, the homeowner is not entitled to unreasonably decline to participate on any of those dates and, in doing so, delay the efficient resolution of the matter. This is especially true when the dispute involves a safety issue which needs immediate resolution.

Depending on the circumstances and history of the dispute, the homeowner’s failure to cooperate in the scheduling process may be deemed a rejection of ADR, thereby authorizing the HOA to file a lawsuit to resolve the dispute. Additionally, if a lawsuit is filed and the HOA prevails, the court may consider the homeowner’s unreasonable refusal to schedule/participate in the ADR when determining the amount of the HOA’s attorneys’ fees award. Ca. Civ. § 1369.580.

HOAs must use caution when taking action to resolve a dispute with a homeowner that could escalate to litigation. The HOA must ensure that it acts reasonably in its efforts to offer the homeowner the opportunity to participate in the statutorily required ADR process. The HOA’s Board should seek the assistance of its legal counsel who can provide guidance based on the unique circumstances of the dispute and the conduct of the offending homeowner.

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

New Client: Montelena at Aliso Viejo

Published on: July 9, 2013 | by Steven J. Tinnelly, Esq.

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We are proud to announce that Montelena at Aliso Viejo has selected Tinnelly Law Group as their association legal counsel.

Montelena at Aliso Viejo is a 126 unit condominium development in Southern California where residents can relax in their community swimming pool and heated spa.

Our HOA Lawyers and staff look forward to working with Montelena at Aliso Viejo.

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