HOA Lawyer Blog

Is our HOA Required to Allow Artificial Grass?

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

*Asked & Answered

Asked – Our HOA’s Architectural Committee received an application for a homeowner to install artificial grass in their front yard. Does Civil Code Section 1353.8 (Use of Low Water Using Plants) require us to approve it?

Answered – No. Civil Code Section 1353.8 renders void and unenforceable any restrictions in a HOA’s governing documents that prohibit the installation of low water-using “plants.” Artificial grass or synthetic turf is not a plant, but a synthetic material designed to look like grass.

The California Legislature has in the recent past proposed bills that would require HOAs to permit the installation of artificial grass in their communities. Those bills, however, were vetoed by California governors and ultimately never made it into law. The most recent veto by Governor Jerry Brown in 2011 was based on the Governor’s recognition that “[t]he decision about choosing synthetic turf instead of natural vegetation should be left to individual homeowners associations, not mandated by state law.”

HOAs may authorize the installation of artificial grass/synthetic turf, but they are not required to.

Before deciding to authorize artificial grass, the Board will want to check local ordinances for any restrictions, and develop guidelines for such characteristics as color, pile and weight, toxic materials, permeability, water absorption, and drainage. Additionally, even where artificial grass is permitted, a HOA may still set standards for its appearance and quality, and thus require a homeowner to submit a sample of the artificial grass as part of the homeowner’s architectural application.

Content provided by TLG attorney Terri Morris

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

New Client: Higgins Lofts

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

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We are proud to announce that Higgins Lofts has selected Tinnelly Law Group as their association legal counsel.

This beautiful 10-story building in downtown Los Angeles was conceived and designed in 1910. Upon entering the lobby, residents are greeted with classic detailing including mosaic title flooring, caged elevators, and meticulous iron work. The basement and former boiler room is home to the world class Edison Lounge.

Residents of this 135 unit building are proud to be a part of living history, as Higgins Lofts is a wonderful example of the art, culture, and entertainment communities of downtown Los Angeles.

Our HOA Lawyers and staff look forward to working with Higgins Lofts.

Electronic Balloting May be Coming to HOA Elections

Published on: April 2, 2013 | by Steven J. Tinnelly, Esq.

Under the Davis Stirling Act as currently written, common interest developments (“CIDs”) are required to comply with certain procedures for conducting elections. Among other requirements, the Act requires CIDs run by homeowners associations (“HOAs”) to adopt rules and appoint inspectors for the purpose of verifying signatures, counting and tabulating votes. Additionally, the votes themselves must be placed on secret paper ballots, using a specific procedure requiring the use of double envelopes.

Although the rules were intended to improve and standardize the manner in which HOA elections are conducted, they have also had the unfortunate consequence of making it more difficult to achieve quorum. As a result, HOAs are expending more resources, time and money in their attempts to hold an effective election.

In response to these difficulties, the California Legislature has introduced Assembly Bill 1360 (“AB 1360”) sponsored by the CAI California Legislative Action Committee (“CLAC”). In short, AB 1360 proposes to modify the rules to authorize HOAs to conduct elections and other votes of the membership by electronic means. Although paper ballots would still be utilized, the Bill would require Associations to provide their members with the option of voting electronically.

To be kept up to date on the progress of AB 1360, visit CLAC’s blog. If you have questions or concerns regarding your HOA’s voting procedures, or would like to know more about the potential impact of AB 1360, contact your HOA’s legal counsel.

Content by TLG attorney Kai MacDonald

New Client: Alcott Community Association

Published on: March 28, 2013 | by Steven J. Tinnelly, Esq.

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

Nestled in the Coyote foothills of Buena Park, Alcott provides residents with a small town feel in one of the most desirable areas of Orange County. Surrounded by parkland, sandstone cliffs, shady tress and California sagebrush, the landscape of the community is beautiful.

Alcott is rich in amenities, and is located conveniently close to popular recreation destinations.

Our HOA Lawyers and staff look forward to working with Alcott Community Association.

HOA Gets ‘Smoked’ in Nuisance Enforcement Case

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

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The problems posed by second-hand smoke have become a burning issue for California homeowners associations (“HOAs”), expecially condominium developments. A HOA typically does have the authority to adopt operating rules that prohibit smoking in common areas and exclusive use common areas; however, those rules may be insufficient to address problems posed by second-hand smoke emanating from inside an owner’s unit. Prohibiting that type of activity generally requires language to that effect contained in the HOA’s recorded CC&Rs. Where there is no such language, HOAs often refuse to get involved and opt to treat those situations as a “neighbor-to-neighbor” disputes.

However, we have written before about how a HOA may have an obligation to enforce the nuisance provisions contained in its CC&Rs to address problems posed by smoking within units. An Orange County jury recently affirmed this fact in the first ruling of its kind in California. The jury in Chauncey v. Bella Palermo Homeowners’ Association, et al., OCSC Case No. 30-2011-00461681, found the defendants HOA and its management company negligent and also found the HOA in breach of its CC&Rs for failing to enforce its nuisance provision protecting the plaintiffs’ rights to their “quiet enjoyment” of their unit. The jury held the HOA liable for doing nothing to abate the alleged nuisance resulting from the second-hand smoke, despite the fact that the CC&Rs contained no provision specifically prohibiting smoking within the units.

More and more municipalities are adopting “no-smoking” ordinances within multi-dwelling residential units. However, where there are no such ordinances, or any similar restrictions contained in a HOA’s recorded CC&Rs, a HOA may be still be obligated to enforce its nuisance provisions to address problems posed by second-hand smoke emanating from the interior of a unit. Where the problems persist, a HOA should consult with its legal counsel and also consider a formal amendment to its CC&Rs to prohibit smoking throughout the entire development.

Content by TLG attorney Terri Morris

Recovering Pre-Litigation Attorney’s Fees in HOA Disputes

Published on: March 13, 2013 | by Steven J. Tinnelly, Esq.

*New Case Law

In our recent blog post entitled “Are Attorney’s Fees for ADR Recoverable?” we touched briefly on the recently decided case of Grossman v. Park Fort Washington Association (2012) 212 Cal. App. 4th 1128 (“Grossman”). In response to requests for more information on this issue from our clients and industry partners, we felt it necessary to further address the reasoning behind the court’s ruling in Grossman.

In Grossman, a dispute between a homeowners association (“HOA”) and a homeowner relating to a claimed architectural violation was resolved by the trial court in favor of the homeowners. In awarding the homeowners attorney’s fees and costs arising from both pre and post-litigation activities, the trial court cited Civil Code Section 1354(c), which states that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (Emphasis added.)

The HOA objected to the award based on its argument that the statute did not authorize awarding pre-litigation attorney’s fees (fees incurred in participating in ADR) because such fees were not incurred as part of the action (the lawsuit) to enforce the governing documents. However, the appellate court disagreed with the HOA and ultimately affirmed the ruling, noting several key points…

Consequences for failing to distribute HOA annual budget?

Published on: March 8, 2013 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked: Are there any negative consequences or liability that can result from our Board’s failure to distribute the HOA’s annual budget?

Answered: Yes. California Civil Code Section 1365 requires a homeowners association (“HOA”) board of directors to prepare and distribute an annual pro forma operating budget to the HOA’s membership. Failure to comply with this requirement may hinder the board’s ability to take certain actions, such as increasing assessments or levying special assessments.

Under California Civil Code Section 1366, a HOA may increase annual assessments by twenty percent (20%), and impose special assessments of up to five percent (5%) of budgeted gross expenses, without the need to obtain membership approval. However, this power may only be exercised by the board if the annual budget required by Section 1365 has been distributed to the membership thirty (30) to ninety (90) days before the start of the fiscal year. Accordingly, where a HOA fails to comply with its financial disclosure obligations, regular assessment increases and special assessments will need to be submitted to the membership for approval. This will require the HOA to conduct a costly and potentially ineffective election and, should the membership fail to approve the assessment increase, the HOA may be forced to delay desperately needed repairs or forego other necessary services when needed.

The Civil Code’s various disclosure requirements can be difficult for any volunteer board to fully understand and satisfy. It is therefore important for HOAs to utilize the services of competent industry professionals, managers and financial planners to ensure that the interests of the HOA and the membership are not jeopardized as a result of statutory noncompliance.

Content provided by TLG attorney Kai MacDonald.

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

Are Attorney’s Fees for ADR Recoverable?

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

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Asked – Are our HOA’s attorney’s fees recoverable when we participate in ADR with a homeowner?

Answered – Maybe. Civil Code §1354(c) states that “in an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” Alternative Dispute Resolution (“ADR”) does not technically constitute an “action” as contemplated by Civil Code §1354(c). When a homeowners association (“HOA”) and a homeowner agree to participate in ADR, Civil Code §1369.540(c) states that “the costs of [ADR] shall be borne by the parties.” Accordingly, each side pays its own attorney’s fees, and the mediation fees/costs are split between the parties unless the parties negotiate a different arrangement.

However, if the ADR results in a settlement of the dispute, then the attorney’s fees are allocated according to the settlement terms. If the ADR does not result in a settlement and a lawsuit ensues, then the “prevailing party” in the resulting lawsuit may recover its pre-litigation attorney’s fees incurred for ADR. In the recent case of Grossman v. Park Fort Washington Association (2012) 212 Cal. App. 4th 1128, the prevailing party (the homeowners) were awarded their attorneys’ fees incurred in pre-litigation ADR:

“…[B]ecause the Legislature has required ADR, a party acts reasonably when it spends money on attorney fees and costs during pre-litigation ADR. The alternate view–that such expenditures are categorically unreasonable–is contrary to the strong public policy of promoting the resolution of disputes through mediation and arbitration…Thus, when attorney fees and costs expended in pre-litigation ADR satisfy the other criteria of reasonableness, those fees and costs may be recovered in an action to enforce the governing documents of a common interest development.” Grossman.

Attorney’s fees incurred in ADR are typically not recoverable absent language to that effect in the terms of the ADR settlement. However, if no settlement is reached and a lawsuit ensues, the public policy factors recognized by the court in Grossman suggest that these attorney’s fees should be recovered by the prevailing party (e.g., the HOA) in the lawsuit.

Content provided by Tinnelly Law Group attorney Bruce Kermott

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

New Client: Solera Diamond Valley

Published on: February 13, 2013 | by Steven J. Tinnelly, Esq.

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We are proud to announce that Solera Diamond Valley has selected Tinnelly Law Group as their association legal counsel.

Located in Hemet, Solera Diamond Valley will have over 570 units at build out. With mountain views and gently rolling hills, this active adult community gives its residents enough space to feel removed from the city, while still being conveniently close to shopping, entertainment, and restaurants.

Multiple pools, a fitness center, sport courts, and an assortment of clubs and classes ensure that residents are never lacking activities to engage in.

Our HOA Lawyers and staff look forward to working with Solera at Diamond Valley as we continue developing our relationship with this fantastic active adult community.

Responding to Requests for Accommodation

Published on: February 7, 2013 | by Steven J. Tinnelly, Esq.

*New Library Article

Civil Code Section 1360 generally requires homeowners associations (“HOA”) to allow a disabled owner to, at the owner’s expense, make modifications to the owner’s units and potentially to the HOA’s common areas in order to accommodate the owner’s disability. When a HOA receives a request for an accommodation, what steps can and should the HOA take to verify the owner’s disability and to determine whether or not the owner is indeed entitled to the accommodation? This article addresses three questions that may be useful to an Association in this regard.

Our HOA lawyers have also published this information in our new article entitled “Responding to Requests for Accommodation,” available for download from our library.

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