HOA Lawyer Blog

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.

Swimming Pools: Required Safety Signs

Published on: June 25, 2013 | by Steven J. Tinnelly, Esq.

pool signs hoa attorny california.png *Asked & Answered

Asked – Is there a new sign requirement for pools located in homeowners associations?

Answered – Yes. Title 24 of the California Building Code was updated to require new safety signs for public swimming pools. (Association pools are considered public pools.) Two new signs are required for all pools:

A sign shall be posted on the exterior side of all gates and doors leading into the pool enclosure stating, “KEEP CLOSED.”
A sign in letters at least 1 inch high and in a language or diagram that is clearly stated shall be posted at the entrance of the pool area which states that persons having currently active diarrhea, or who have had active diarrhea within the previous 14 days shall not be allowed to enter the pools water.

A third new sign must be posted at pool areas that have spray ground (interactive fountains) that children run through, and made visible from any part of the spray ground that states, “CAUTION: WATER IS RECIRCULATED. DO NOT DRINK.”

The signs are required immediately on all new pool construction; however, on existing pools it will be up to the Environmental Health Services personnel that inspect the association’s pool to provide the deadline for positing the new signs. It would be prudent to have the signs posted as soon as possible.

Content provided by TLG attorney Terri Morris

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

New Client: Paseo at La Floresta

Published on: June 25, 2013 | by Steven J. Tinnelly, Esq.

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We are proud to announce that Paseo at La Floresta has selected Tinnelly Law Group as their association legal counsel.

Paseo at La Foresta, in the city of Brea, has a variety of architectural styles set against beautiful natural surroundings. Residents of this 118 unit community are offered a small-town neighborhood feel with access to numerous amenities, including miles of walking and biking trails, an extensive swim and play club, and a retail and dining center.

Our HOA Lawyers and staff look forward to working with Paseo at La Floresta.

SB 822 to Clarify Contractor Licensing Reqs. for HOA Managers

Published on: June 20, 2013 | by Steven J. Tinnelly, Esq.

hoa contractor.jpg We recently blogged about some concerns which have surfaced in the HOA industry regarding the impact of new contractor licensing requirements. AB 2237 was passed in 2012 by the California Legislature to expand on the definition of the “contractors” who must be licensed by the state. That expanded definition includes language which could be read to require common interest development (“CID” aka “HOA”) managers to have a contractor’s license in order to perform common tasks such as obtaining bids and overseeing the progress of ongoing construction work.

Our blog post addressed how a careful reading of the statutes along with the legislative intent behind AB 2237 reveal that HOA managers are not intended to be “contractors” that are required to hold a license. Fortunately, SB 822, introduced earlier this year, now includes a clarifying amendment to specifically exclude HOA managers from the definition of a contractor:

“This bill would provide that the term ‘contractor’ or ‘consultant’ does not apply to a common interest development manager, and a common interest development manager is not required to have a contractor’s license when performing management services, as defined.”

SB 822 validates our belief that HOA managers were not intended to be subject to the new contractor licensing requirements. SB 822 is likely to pass and you can track the bill’s progress by clicking here.

New Client: Windwards Homeowners Association

Published on: June 4, 2013 | by Steven J. Tinnelly, Esq.

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

This beautiful condominium community has 187 units. It’s location close to Aliso Viejo Town Center provides residents with a taste of urban life, while it’s proximity to Aliso and Wood Canyon Wilderness Park encourages hiking and mountain biking.

When not our exploring the local area, residents can relax in the community pool or spa.

Our HOA Lawyers and staff look forward to working with Windwards.

HOA Restrictions on Companion and Service Animals

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

service animal hoa law accomodation attorneys disability.png *Asked & Answered

Asked – Our high-rise condominium association does not allow dogs weighing over 40 pounds, but we have an owner that has requested an exception for her “companion” dog that is a 70 pound Golden Retriever. Does our HOA have to allow the homeowner to have her companion dog?

Answered – Probably. The HOA may not discriminate against individuals with disabilities by prohibiting a “companion” animal or a “service” animal. The HOA’s weight restrictions for pets in the community does not apply to companion or service animals because they are not “pets.” Companion animals provide psychiatric support to individuals suffering from a mental disability such as depression, claustrophobia, certain types of autism, and other disorders that are mental in nature, while service animals assist with physical disabilities.

The Board must be careful to properly address the request for an accommodation due to a disability. If the homeowner can provide documentation of her diagnosed need for the animal, the Association must permit her to keep the animal in the community. The request should be handled quickly and with respect for the individual.

Handling requests for accommodation can be challenging. For more information on this topic, please visit our library and review our article titled “Responding to Requests for Accommodation.”

Content provided by TLG attorney Terri Morris

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

New Client: Marbella Property Owners Association

Published on: May 15, 2013 | by Steven J. Tinnelly, Esq.

We are proud to announce that the Marbella Property Owners Association has selected Tinnelly Law Group as their association legal counsel.

Located in San Juan Capistrano, this gorgeous gated community offers stunning custom homes, and members-only golf, tennis and recreational facilities.

In addition to the award-winning championship golf course, residents also enjoy an Olympic size swimming pool and a beautiful clubhouse.

Our HOA Lawyers and staff look forward to working with the Marbella Property Owners Association.

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