HOA Lawyer Blog

Bankrupt Owners in Your Community

Published on: February 13, 2012 | by Steven J. Tinnelly, Esq.

*New Resource

Community associations (“associations”) often deal with owners overburdened by debt and unable to pay their assessments. These owners may file for bankruptcy to seek financial relief. How does this affect an association? What must an association be aware of? How can an association protect its interests? This blog post addresses these questions while providing a basic outline of the three (3) types of bankruptcies that can affect an association: Chapter 7, Chapter 11, and Chapter 13.

This information can also be found in our new resource entitled “Bankrupt Owners in Your Community”, available for download from our library.

Neighbor to Neighbor Enforcement of HOA CC&Rs

Published on: February 6, 2012 | by Steven J. Tinnelly, Esq.

Owners often question whether they can enforce their HOA’s CC&Rs on neighboring owners in the event that their HOA is either unwilling or unable to do so. Owners also question whether they can recover any attorney’s fees that they expend in bringing such an enforcement action.

The recent, unpublished opinion in Klein v. Nyamthi (2012) illustrates that owners may bring such enforcement actions in certain circumstances and may also recover their attorney’s fees should they prevail.

In Klein, the Defendant was violating the HOA’s CC&Rs by not fixing a landscape grading problem which ultimately caused his neighbor’s (the Plaintiff’s) home to sustain flooding damage. The Defendant violated the maintenance and nuisance provisions of the HOA’s CC&Rs by not “plant[ing] and water[ing] the slopes of [his] property, or otherwise maintain[ing] it in such a manner” as to prevent erosion and potential flooding. In recognizing that CC&Rs essentially constitute a contract between each of the owners and the HOA, the court highlighted the fact that CC&Rs are “enforceable by the owner of any lot in the development” pursuant to Civil Code Section 1354(a). Moreover, because the Plaintiff prevailed “in an action to enforce [the] CC&Rs,” in accordance with Civil Code Section 1354(c), the court ruled that the Plaintiff was “entitled to recover [attorney’s fees] as a matter of right.”

The Civil Code does provide owners the general right to enforce their Association’s CC&Rs against neighboring owners and the Association itself. However, some CC&Rs may contain provisions which limit or otherwise affect this right in certain situations. As a general rule, it is best for an owner to defer to the enforcement efforts of her Association and its Board of Directors when violations of the CC&Rs exist. Exercising “self-help” should be a measure of last resort in the rare instances where the Association is either unable or unwilling to comply with its enforcement obligations.

Surveillance Cameras Within Your Association

Published on: January 26, 2012 | by Steven J. Tinnelly, Esq.

*New Resource

Video surveillance cameras are now being installed almost everywhere, so why not in your homeowners association (HOA)? When used properly surveillance cameras can provide additional security, a greater sense of safety and a deterrent to would be criminals. Yet several questions and considerations are often raised with respect to the installation of surveillance cameras within a HOA.

Does it violate the law for a HOA to install surveillance cameras within the community? Are these cameras helpful in reducing criminal activity? Is it acceptable to use “dummy” cameras instead of operative cameras? Does a HOA have to post signs notifying the homeowners that they are under video surveillance? These are some of the questions that HOAs are asking legal counsel as their Boards consider installing surveillance cameras to monitor entry gates, parking facilities and other common areas.

This blog post will address some of these questions while providing your HOA and management personnel with some guidance in this area. This information can also be found in our new resource entitled “Surveillance Cameras within your Association”, available for download from our library.

Charging Homeowners HOA Attorney’s Fees in Violation Hearings?

Published on: January 23, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered

HOA Communications with Homeowners: Methods of Delivery?

Published on: January 16, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered hoa law mailbox

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.

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.

Published on: January 12, 2012 | by Steven J. Tinnelly, 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.

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

Published on: December 27, 2011 | by Steven J. Tinnelly, Esq.

*New Case Law hoa_solar

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?

Published on: December 5, 2011 | by Steven J. Tinnelly, Esq.

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

Published on: November 28, 2011 | by Steven J. Tinnelly, Esq.

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?

Published on: November 15, 2011 | by Steven J. Tinnelly, Esq.

*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.

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.

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