HOA Lawyer Blog

Should your Association Permit the Installation of Cell Towers?

Published on: April 18, 2011 | by Steven J. Tinnelly, Esq.

A recent story in the Coast News highlights a situation faced by some HOAs: whether or not to permit the installation of cellular towers on Association property.

In Encinitas, a HOA Board is supporting a ballot measure that would grant Verizon a 20 year lease and allow a cellular tower to be placed on one of the Association’s greenbelts. The fees generated by the agreement would total $800,000 in new revenue for the HOA.

Regardless of the financial incentive, some of the HOA’s members fear that the cell tower would negatively impact their health and property values. Though the health-related argument is speculative, the members in opposition to the measure feel that maintaining property values is a legitimate concern.

To read the full story, click here.

Many of our HOA clients have permitted similar types of cellular installations on Association property without experiencing any negative impact on the community. A HOA Board should always take into consideration the views voiced by its membership when determining what is in the best interest of its community. However, HOA Boards and members should not discount how beneficial new revenue streams can be for an Association.

TLG Secures Injunctive Relief for HOA Client in Dana Point

Published on: April 8, 2011 | by Steven J. Tinnelly, Esq.

TINNELLY LAW GROUP has prevailed in an Architectural Control suit for one of our clients–a HOA in Dana Point, California. The Defendant homeowner installed a window in the second floor bedroom of his residence which overlooked his neighbor’s bathroom, patio and kitchen. Our client’s Architectural Control Committee (“ACC”) had already rejected two previous applications for the window; however, in 2008 the Defendant homeowner installed the window anyway without informing the HOA or submitting an application to the ACC.

As part of its evaluation process, the HOA’s Board of Directors (“Board”) conducted a hearing at which both the Defendant homeowner and his neighbor presented their cases. The Board then performed an on-sight inspection of both residences and concluded that the window did violate the neighbor’s privacy and, as a result, the Board denied the window application. The Board suggested in its denial that the Defendant homeowner submit another application with a modified window which takes the neighbor’s privacy concerns into consideration. When the homeowner refused, the lawsuit was filed and the bench trial was heard on March 10 and 11, 2011.

The trial court ultimately ruled that: (1) the HOA acted within the authority granted to it by its CC&R’s, (2) the HOA’s denial was made after a reasonable investigation, (3) the HOA’s denial was made in the best interests of the community, and (4) the HOA’s denial was made in a non-arbitrary manner. The court ordered that the window be removed and the wall of the residence be returned to its original condition. The court then found that the HOA was the prevailing party and that it was entitled to recover its attorney fees and costs.

We congratulate Bruce Kermott on securing another success in court.

“Bruce Kermott did an excellent job and is to be commended on his thoroughness, marshaling of the records and evidence, and presenting our case to the Judge” – (Client Board Member)

TINNELLY LAW GROUP strives to resolve its clients’ disputes through non-judicial means wherever possible. However, when issues do result in litigation, our clients take comfort in knowing that our attorneys provide the highest quality representation available.

HOA Not Liable for Injuries Sustained by Independent Contractor

Published on: April 4, 2011 | by Steven J. Tinnelly, Esq.

A recently decided case held that the California Occupational Safety and Health Act (Cal-OSHA) did not impose on a Homeowners Association (HOA) any duty to an independent contractor who was injured in a fall while servicing AC units on rooftops at the HOA complex.

In Iversen v. California Village Homeowners Association, 2011 WL 1034261 (“Iversen“), an independent contractor brought premises liability and negligence causes of action against a HOA seeking damages for injuries he sustained in a falling from a ladder while servicing the HOA’s AC units. The independent contractor alleged that the HOA failed to provide a ladder that complied with Cal-OSHA regulations–a set of provisions that are “intended to assure safe and healful working conditions” for workers in California. The HOA moved for summary judgment by contending that it was not required to comply with Cal-OSHA because the plaintiff was an independent contractor and could not establish that the HOA owed him a duty of care or breached a duty of care.

Complaining about your HOA is a Constitutionally Protected Activity

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

A recently decided case underscores the fact that speaking out against the action of a HOA’s Board of Directors, agents and/or management is a constitutionally protected activity. In Country Side Villas Homeowners Association v. Susan Ivie, 193 Cal.App.4th 1110 (2011) (“Country Side“), a homeowner (“Ms. Ivie”) was upset at the Association’s newly elected Board and newly hired Attorney for their new interpretation of a maintenance provision in the CC&Rs concerning balconies. Ms. Ivie was concerned about the lack of funding for the new maintenance obligation and also that the decision was being made by the Board for self-serving reasons. The case ultimately went to trial where the Association sought a judicial determination as to the interpretation of the CC&Rs and also sought damages in the form of attorneys’ fees from Ms. Ivie.

The most interesting aspect of the holding is that the appellate court ultimately affirmed the trial court’s granting of Ms. Ivie’s anti-SLAPP motion. “SLAPPs” (“Strategic Lawsuits against Public Participation”) are civil complaints or counterclaims in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the US Constitution. California has an anti-SLAPP statute (Civil Procedure Section 425.16) that provides for a special motion to strike a complaint where the complaint arises from conduct that falls within the rights of petition and free speech.

HOA Members Concerned Over High-Speed Rail Plans

Published on: March 21, 2011 | by Steven J. Tinnelly, Esq.

The Problem of Suspended Homeowners Associations

Published on: March 18, 2011 | by Steven J. Tinnelly, Esq.

California Homeowners Associations (“HOAs”) primarily exist as California Nonprofit Mutual Benefit Corporations. We have recently encountered some instances where smaller and/or self-managed HOAs have failed to file and pay their state corporate taxes and/or make certain corporate filings. The unfortunate result for these HOAs is that their California corporate status is being suspended.

The exercise of corporate powers, rights and privileges may be suspended both under California Revenue and Taxation Code Section 23301 for a HOA’s failure to pay taxes and under California Corporations Code Section 5008.6 for the HOA’s failure to file certain corporate statements. Once a HOA is suspended, so too are its powers, rights and privileges which are outlined in its governing documents.

These powers, rights and privileges are essential to the effective management and functioning of its community. Should directors or agents of a suspended HOA even attempt to carry out the powers of the HOA during the period of its suspension, California Revenue and Taxation Code Section 19719 may punish them “by a fine of not less than $250 and not exceeding $1,000, or by imprisonment not exceeding one year.”

City Held Responsible for Maintaining Berm Supporting HOA Property

Published on: March 14, 2011 | by Steven J. Tinnelly, Esq.

In Coronado Cays Homeowners Association v. City of Coronado (2011), the City of Coronado (“City”) appealed a judgment in which the court determined the City, rather than the Coronado Cays Homeowners Association (“Association”) is responsible for the maintenance of a berm that provides lateral support to bulkheads located on Association property.

The original developer of the project had placed concrete bulkheads along “Lot 90” of the development to act as a retainer for the waterway that was to be dredged on the adjoining lot, “Lot C”. The developer then dedicated “Lot C” to the City for public recreational use while reserving a 55′ wide easement for docks and related structures for the exclusive use of the Association’s residents.

The gradual erosion of the supporting berm in which the bulkheads are embedded resulted in the failing of several bulkheads. Though the Association conceded that it is responsible for maintaining the bulkheads, the Association sought a judicial determination that the City is responsible for maintaining the berm since it is located in the waterway.

Homeowners Compelled to Submit to Hoarding Inspections by HOA

Published on: March 11, 2011 | by Steven J. Tinnelly, Esq.

Laguna Woods’ United Mutual HOA board voted unanimously this month to adopt a policy to compel residents suspected of hoarding to allow the association to inspect their home.

In the wake of the policy’s adoption, the HOA’s board of directors sought to assure the association’s members that the policy would not be abused and that members would not be subject to the HOA “breaking down” their doors.

The policy states that once a complaint is filed by one of the association’s members, an inspection would be ordered of the residence where the hoarding is suspected. The HOA board must first get the resident’s permission to enter the unit for the inspection. However, residents who refuse the inspections will be called to a disciplinary hearing before the board.

Homeowners Associations Saving Money with Solar Power

Published on: February 23, 2011 | by Steven J. Tinnelly, Esq.

The rough economic times have encouraged Homeowners Associations to look for ways to reduce their expenditures. In an effort to reduce electricity costs, some Homeowners Associations in Arizona are turning to solar power. An article published in the Arizona Republic highlights one such Homeowners Association, the Sunbird Golf Resort.

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After learning that one owner within the Association was able to reduce his personal electricity expense to approximately $15.00/month by utilizing solar technology, Sunbird’s management became interested in exploring potential opportunities to utilize solar power for the Association at large.

The first application of solar power was the installation of solar-powered heating for the community swimming pool. This application was able to immediately reduce what had been a $26,000 annual expense for the Association.

The Association is now looking for ways to further expand its implementation of solar power, including powering their streetlights and clubhouse.

Homeowners Associations in California may want to explore the feasibility of implementing alternative energy within their communities. Some CC&Rs may restrict or prohibit these installations; however, any such restrictions flatly prohibiting solar panels are null and void in California. If you would like some guidance on this issue, contact our offices to discuss with one of our attorneys the options available to your Association.

Should a HOA Foot the Repair Bill for Dilatory Owners?

Published on: February 9, 2011 | by Steven J. Tinnelly, Esq.

A HOA may not be responsible for the entire cost to repair damage if the owner was slow to disclose the situation to the HOA.

The heavy rains that hit Southern California this winter have unfortunately resulted in many instances of leaks and water intrusion. If a Homeowners Association (“HOA”) is obligated under its Governing Documents to repair/maintain the exterior walls of units, it is likely also obligated to repair damage to the interior of units caused by water leaking through the exterior walls.

However, if an owner is unreasonably slow to notify the HOA of a leak, the HOA may not be responsible for the entire cost to repair the damage. HOA Governing Documents typically include provisions that hold owners accountable for damage caused by their willful or negligent conduct. Additionally, California caselaw requires that owners use “ordinary care and diligence” to prevent an unwarranted piling up of damages. If the owner failed to disclose the leak to the HOA in a timely manner, the HOA may hold the owner responsible for the portion of the repair cost attributable to the owner’s unreasonable delay in disclosure.

A HOA’s Governing Documents outline the HOA’s obligations to repair/maintain various areas within the community. However, situations often arise where the scope of the HOA’s obligations may not be clearly defined.

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