HOA Lawyer Blog*Asked & Answered
HOA Communications with Homeowners: Methods of Delivery?
*Asked & Answered
Asked – Is it true that the law requires an Association to send notifications and communications to the homeowners via USPS only?
Answered – No. An Association’s governing documents may require that certain types of communications with homeowners be sent via USPS. However, in the event that no such requirements are contained in an Association’s governing documents, the California Civil Code may still require USPS for certain communications. One example would be a Notice of Lien, where an “[A]ssociation must notify the owner by certified mail.” Civil Code § 1367.1(a).
However, the homeowner can also consent to receive certain communications by other means besides USPS, such as electronic mail. An example is the Association’s Annual Update of Reserve Study, which may be delivered by “E-Mail, facsimile, or other electronic means, if the recipient has agreed to that method of delivery.” Civil Code §§ 1350.7(b)(3), 1363.005.
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Be sure to review your Association’s governing documents to determine what provisions, if any, govern how notifications and communications are made between the Association and the homeowners. If the governing documents seem to be ambiguous, consult your Association’s legal counsel. |
To submit questions to Tinnelly Law Group, click here.
New TLG Attorney! Kai MacDonald, Esq.
TINNELLY LAW GROUP is proud to announce it’s newest member of the team: Kai MacDonald, Esq.
Mr. MacDonald received his undergraduate education at the University of California, Santa Barbara, where he double majored in Philosophy and Law & Society. He received his Juris Doctorate from the University of San Diego, School of Law, in 2008, where he focused on tax law and real estate, and was awarded the Ralph Gano Miller Excellence in Tax Award for outstanding scholarship in tax law. In 2009 Mr. MacDonald went on to obtain his LLM in Taxation (Masters in Tax Law) from the University of San Diego, School of Law. Mr. MacDonald is also a licensed real estate broker and public notary.
Mr. MacDonald will work primarily within the firm’s transactional department, where he will focus on interpretation of governing documents and contract review. He will also be involved in the firm’s marketing and client development efforts.
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We are excited to have Mr. MacDonald join the TLG family; we know he will be a tremendous asset to our firm, our clients, and the industry partners we work with on a daily basis. |
For Mr. MacDonald’s full bio, click here. He can be reached at
Shining Some Light on Architectural Review of Solar Energy Systems
*New Case Law
More and more homeowners are seeking to utilize the cost-savings and environmental benefits that solar energy systems provide. However, the way in which a homeowner may obtain cheaper and “greener” energy should be balanced against the need for a Homeowners Association (“HOA”) to ensure that such systems will not place additional strain on the Association’s maintenance resources or jeopardize the aesthetic harmony of the community. Civil Code Section 714, a component of the “California Solar Rights Act,” purports to provide for such a balance by imposing additional requirements on an HOA when it evaluates a homeowner application for a solar energy system.
The interpretation of these requirements was central to the ruling in the recent case of Tesoro del Valle Master Homeowners Association v. Griffen. In Tesoro, defendants sought to install a solar energy system at their residence (“the Property”) located within the Tesoro del Valle Master Homeowners Association (“Association”). The dispute arose after the defendants proceeded with installing the solar energy system without the Association’s approval. As is the case with many HOAs, the Association’s CC&Rs prohibited homeowners from performing any “construction, alteration, or removal of any Improvement in the [Association]…without the approval of” the Association’s Architectural Control Committee (“ACC”).
The ruling in Tesoro dealt with many factual and procedural issues regarding the process by which the defendants’ application for a solar energy system was denied by the ACC. However, the most interesting aspects of the holding relate to the court’s interpretation of three issues concerning a HOA’s legal obligations under Section 714 when evaluating an application for the installation of a solar energy system. In general, these issues were:
- What factors can establish that, within the meaning of Section 714, a HOA’s CC&Rs and design guidelines allow for an “alternative solar energy system” of “comparable costs and efficiency” that “does not increase the cost or decrease the efficiency” of the proposed system?
- May a HOA consider the aesthetic impact of a proposed solar energy system in determining whether to approve the application?, and
- If a HOA rejects an application for a solar energy system by requesting that the applicant explore a possible alternative solar energy system, is the HOA responsible for designing or proposing such a system?
Imposing Fees on HOA Members who Rent out their Homes?
The additional burdens that renters impose can be substantial for many common interest developments–especially those developments designed as “recreational communities.” Renters who lack a sense of investment in the community or who are unfamiliar with its operational structure can place greater strain on the community’s management and maintenance resources. This may not only frustrate other owners within the community, but may also significantly impact the financial health of the Homeowners Association (“HOA”) formed to preserve and protect it.
We have written about how HOAs adopt and enforce rental restrictions as a means to alleviate some of the problems posed by renters. We have also published a resource explaining how new legislation taking effect January 1, 2012 will limit a HOA’s ability to restrict rentals in certain circumstances. However, in addition to imposing rental restrictions where possible, can a HOA impose a fee on owners who wish to rent out their homes? In the recent, unpublished decision of Watts v. Oak Shores Community Association, the answer may be yes.
2012 Legislative & Case Law Update Now Available
Our “2012 Legislative & Case Law Update” newsletter is now available in our library!
The 2012 Legislative & Case Law Update provides an overview of the new legislation impacting California Homeowners Associations (“HOAs”) and the community association industry professionals who service them. The new legislation includes, among other things, bills that impose new requirements on Board Member meetings and new limitations on HOAs that wish to restrict rentals in their communities.
The 2012 Legislative & Case Law Update also provides an overview of some important new case law, along with some links to additional resources we have published on the items discussed therein.
Click here to read our 2012 Legislative & Case Law Update
Have questions on any of the new legislation or case law? Click here to send us a question online.
Granting Exclusive Use of Common Area: Approval Required?
*Asked & Answered
Asked – Our Board wants to grant homeowners exclusive use of our Association’s common area storage closets and also charge a fee to such homeowners wanting exclusive use. May they do this without membership approval?
Answered – Probably not. Civil Code § 1363.07 substantially restricts an Association’s ability to grant exclusive use of common area. Provided that your Association’s governing documents do not state otherwise, granting exclusive use of any portion of the Association’s common area requires approval by 2/3 (67%) of the membership. There are a few narrow exceptions to this requirement; however, none of the exceptions provided in Civil Code § 1363.07 likely apply to your situation.
An Association is permitted to receive monetary compensation in exchange for granting exclusive use of Association common area. Civil Code § 1363.07 requires disclosure of such compensation when the issue is presented to the membership for a vote.
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Be sure to review your Association’s governing documents to determine what provisions, if any, govern the use rights of common areas and exclusive use common areas within your Association. If the Board does not have the authority under the governing documents, or does not have the requisite approval under the Civil Code, to grant exclusive use of Association common area, homeowners may bring an action in court to reverse the grant. |
To submit questions to Tinnelly Law Group, click here.
Drifting Tobacco Smoke in the Condominium Environment
*New Resource
The problem of drifting tobacco smoke is an issue faced by many common interest developments, especially condominiums. In response to complaints received by their membership, Community Associations (“Associations”) often wonder what their rights and obligations are under both their governing documents and California law to prevent these situations and to protect residents from unwanted tobacco smoke exposure. This blog post discusses these rights and obligations, while providing some guidance to Associations dealing with smoke migration issues.
We have also published a resource on this issue entitled “Drifting Tobacco Smoke in the Condominium Environment” that is available for download from our library.
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Electric Vehicle Charging Stations in Your Community?
In July of this year, Governor Brown signed Senate Bill 209 (“SB 209”) into law. As a result, beginning January 1, 2012, Section 1353.9 will be added to the California Civil Code to restrict an association’s ability to prohibit the installation of Electric Vehicle (“EV”) charging stations (“Stations”). You may have heard of this new law but, like many of our clients and industry partners, wonder what it means for associations and their members. How will the new law ultimately function? Who pays the cost to run the electricity? Must associations permit the installation of Stations on association property? This post discusses the components and criticisms of SB 209 and in doing so addresses some of the questions which have been raised in the wake of its signing.
Right to Withhold Assessments because of Dispute with Association?
*Asked & Answered
Asked – Our CC&Rs require my Community Association to maintain the landscaping along a walkway leading up to my home. If the Community Association keeps neglecting to maintain the landscaping along the walkway, can I withhold my assessments until they finally do so?
Answered – No. The duty of owners to pay assessments to their Community Association is absolute. California law recognizes how vital assessment revenue is to the successful functioning of Community Associations, as “[a] system that would tolerate [an owner’s] refusal to pay an assessment because the [owner] asserts a grievance…would threaten the financial integrity of the entire [Community Association] operation.” Park Place Estates Homeowners Assn. v. Naber (1994) . The duty of owners to pay assessments is also codified at Civil Code §1367.1(a).
Regardless of whatever grievances owners may have against their Community Associations, they may not legally withhold their assessments. However, owners are entitled to dispute assessments, as well as fines, late fees, penalties, and collection costs by paying the disputed amount under protest and following the procedures set forth in Civil Code Code §1367.6.
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The best course of action is to bring the matter to the attention of the Community Association’s Board of Directors at their next scheduled meeting and to try to work with them in finding an amicable resolution to the problem. |
To submit questions to Tinnelly Law Group, click here.