It’s our privilege to welcome Newfield Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.
Located in the City of Gardena, Newfield is a newly constructed, luxury condominium community by KB Homes. Residents enjoy a tot lot and close proximity to beach cities and the South Bay Galleria.
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Our HOA lawyers and staff look forward to working with Newfield’s Board and management. |
It’s our privilege to welcome Country Villas Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.
Country Villas is condominium community located in the City of Fullerton. Residents enjoy a pool, spa, tennis courts, and breathtaking views.
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Our HOA lawyers and staff look forward to working with Country Villas’ Board and management. |
*Asked and Answered
Asked – An employee (“Employee”) of one of our vendor’s (“Vendor”) has left the company and is now employed by a competing firm (“Competitor”). We want to terminate our contract with Vendor and switch to Competitor so that we can continue to use Employee. Vendor’s contract has a non-compete clause stating that we cannot “directly or indirectly” hire any of Vendor’s employees for twelve (12) months after contract termination. Is such a provision enforceable?
Answered – Non-compete clauses are very common, especially in routine service vendor contracts (e.g., building maintenance, management companies, etc.). They are meant to prevent clients from leaving when the employee leaves; after all, the relationship is with the employee, not the employer. Fortunately, such non-compete clauses are generally unenforceable in California.
California law demonstrates a strong aversion to contract provisions that place a restraint on profession, trade, or business. Indeed, unless the covenant falls within one of the expressly defined exceptions, it is void and unenforceable. (See Cal. Bus. & Prof. Code § 16600 (“Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”).) The type of provision referenced in the question does not fall into one of the exceptions identified in the California Business and Professions Code.
Moreover, such a provision has been rendered void as an impermissible restraint on trade under California case law. For example, in VL Systems, Inc. v. Unisen, Inc., the Court held that a very broad no-hire provision of a contract between consulting company and client, under which client could not hire any of consulting company’s employees for twelve (12) months after the contract terminated, was unenforceable, in violation of the statute prohibiting restraints on engaging in a lawful, profession, trade, or business of any kind. (2007) 152 Cal. App. 4th 708. Like in VL Systems, Inc., the no-hire provision in the Vendor’s contract prevents the association from hiring any of Vendor’s employees for twelve months after the contract terminated. Thus, although not a true “covenant not to compete,” the “effect of the no-hire provision is to restrict the employment of [Vendor’s] employees; it is inconsequential whether the restriction is termed a ‘no-hire’ provision between [Vendor] and [the association] or a ‘covenant not to compete’ between [Vendor] and its employees.” (Id. at pp. 716-17.)
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Although the non-compete provision is invalid, it does not mean that Vendor will not bring a lawsuit against the association for breach of contract. Indeed, Vendor may very well bring a lawsuit against the association, which will necessarily result in the parties incurring legal expenses relative thereto. The association therefore must remain mindful of this fact and be prepared to defend itself should a lawsuit ensue. |
-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.
It’s our privilege to welcome Huntington Pier Colony Condominium Homeowners’ Association to Tinnelly Law Group’s growing family of HOA clients.
Huntington Pier Colony is a resort style community of condominium homes in downtown Huntington Beach located within easy walking distance to a wide variety of shops, boutiques, museums, restaurants and entertainment. Residents enjoy an attractive salt water pool and spa; a clubhouse with a full kitchen, workout center and lounge area overlooking the ocean.
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Our HOA lawyers and staff look forward to working with Huntington Pier Colony’s Board and management. |
In case you missed it, Issue # 55 of our ‘Community Association Update’ newsletter is available now!
Topics covered in this issue include:
A link to the newsletter is here.
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It’s our privilege to welcome Turnleaf at the Seasons Neighborhood Association to Tinnelly Law Group’s growing family of HOA clients.
Turnleaf is a new single family home development by KB Home. Located in Chino, residents enjoy a swimming pool with spa, as well as a park and tot-lot, half basketball court and BBQ area.
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Our HOA lawyers and staff look forward to working with Turleaf’s Board and management. |
Board Members are tasked with the difficult job of enforcing the Association’s rules and regulations against non-compliant Members. Unfortunately, this often creates tension between Board Members and Members. In some circumstances, this tension turns into unlawful harassment. When this occurs, Board Members should consider the available legal remedies provided under both California law and their homeowners association’s governing documents in order to protect themselves and abate the harassing conduct.
Generally speaking, a restraining order will provide Board Members with the most immediate relief and protection. This is because the California Code of Civil Procedure requires judges to review and rule on requests for Temporary Restraining Orders within the next business day of filing for the same. (Cal. Code Civ. Proc., § 527.6(e).) (Although, Temporary Restraining Orders only remain in effect for a period not to exceed twenty-one [21] days. Before issuing Permanent Restraining Orders, courts must first allow the parties to present their sides of the story at hearings.)
There are two types of restraining orders that Board Members may consider depending on the nature of the alleged harassing conduct. The most common type of restraining order is a Civil Harassment Restraining Order. To prevail and receive a Civil Harassment Restraining Order, the Board Member must prove that the alleged harasser engaged in one of the following forms of unlawful harassment:
On the other hand, homeowners associations (as corporations) may consider filing Workplace Violence Restraining Orders against the alleged harasser on behalf of its Board Members. According to the California Code of Civil Procedure, Board Members are considered “employees” of homeowners associations for the limited purpose of Workplace Violence Restraining Orders. (Cal. Code Civ. Proc., §527.8(b)(3).) To prevail and receive a Workplace Violence Restraining Order, the homeowners association must prove that the Board Members (or any other employee as defined by the Code of Civil Procedure) suffered:
If after a hearing on the merits, the Court finds that unlawful harassment has taken place, then the judge may issue a Permanent Civil Harassment Restraining Order for up to five (5) years or a Workplace Violence Restraining Order for up to three (3) years. However, the Code of Civil Procedure only permits Courts to award the prevailing party its attorneys’ fees and costs in lawsuits for Civil Harassment Restraining Orders, not Workplace Violence Restraining Orders.
Finally, in some circumstances, a Member’s harassing conduct toward the Board may constitute a nuisance, as defined by the homeowners association’s CC&Rs. In those situations, the homeowners association may consider bringing an unlimited civil action lawsuit against the offending Member to enforce the homeowners association’s governing documents. Board Members should keep in mind that this type of civil litigation is often more costly and the potential relief is not usually as immediate. Furthermore, the alleged harassment must satisfy the definition of a “nuisance,” as set forth in the governing documents.
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If Board Members believe that they are being harassed as a result of their service on the Board of Directors, they should consult with the Association’s general counsel to determine the most effective way to address the problem. Each situation must be evaluated on a case-by-case basis to determine whether the facts meet the legal definition of “unlawful harassment” or a “nuisance.” Of course, Board Members should immediately contact their local law enforcement agencies if they believe that their safety and wellbeing is at risk. |
-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.
It’s our privilege to welcome Talavera Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.
Talavera is a new single family home development by KB Home. Located in Menifee, residents enjoy large homesites and a community park.
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Our HOA lawyers and staff look forward to working with Talavera’s Board and management. |
It’s our privilege to welcome Delta Coves Maintenance Corporation to Tinnelly Law Group’s growing family of HOA clients.
Poised along the pristine canals of the Delta is the brand new boaters club called Delta Coves. This club community is home to 494 waterfront residences each with a private boat dock, all within minutes of fast water. The community’s centerpiece is the Island Camp Club. The Island Camp amenity offers gathering fitness, family games and swim facilities. And a prime location at the gateway to 1,000-plus miles of waterways and 740,000 acres of preserve for unlimited boating, fishing and water sports pursuits.
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Our HOA lawyers and staff look forward to working with Delta Coves’ Board and management. |
It is becoming increasingly popular to raise chickens in suburban and even in urban areas. Chickens offer a continuous source of fresh eggs and arguably help with pest control. Conversely, chickens can be loud, messy, attract coyotes, and arguably are best suited for rural, country life. Because many municipalities have legalized raising chickens in residential zones, HOAs are more frequently encountering owners maintaining chickens in their communities, some even allowing their chickens to roam the common area alongside the family dog.
If the HOA’s governing documents prohibit chickens (also referred to as poultry or livestock), the HOA may require residents to remove their feathered friends from the community. It is important to note that while municipalities may allow a limited number of domesticated chickens in residential zones, it is well-established that an HOA’s governing documents may be more restrictive than local ordinances. So, if the county or city allows chickens, but the more restrictive governing documents do not, the governing documents control.
Chickens may also be prohibited by nuisance restrictions contained in the governing documents. The aforementioned noise produced by roosters along with frequent, malodorous, and non-solid waste arguably constitute an ongoing violation of nuisance restrictions sufficient to require the chickens’ removal.
Oftentimes, when an HOA requires the removal of a prohibited animal, requests to allow the animal to remain on the premises as an emotional support animal (“ESA”) arise. Under the federal Fair Housing Act, which applies to homeowners associations, a housing provider is required to make reasonable accommodations for assistance animals including ESA’s even though they are not trained to do work or perform tasks. Allowing an emotional support animal which would otherwise be prohibited under the Association’s governing documents is a recognized type of reasonable accommodation for a disability under California’s Fair Employment and Housing Act. (Auburn Woods HOA v. FEH Commission (2004) 121 Cal App. 4th 1578).
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Chickens are not typical ESA’s like dogs or cats, but the creativity of Americans is without bounds as evidenced by the wide variety of alleged ESA’s seen on commercial flights including peacocks, turkeys, pigs, monkeys, and hamsters. Due to the complex legal issues and potential exposure to liability associated with reasonable accommodation requests, it is recommended to contact legal counsel immediately if a resident requests to keep a chicken or any other otherwise-prohibited animal due to a disability or medical condition. |
-Blog post authored by TLG Attorney, Carrie N. Heieck, Esq.
HOA Lawyer Blog