HOA Lawyer Blog

What the Cluck? Addressing Backyard Chickens in HOA’s

Published on: May 11, 2022 | by Carrie Heieck, Esq.

what-to-expect-when-youre-expecting-backyard-chickens-feature It is becoming increasingly popular to raise chickens in suburban and even in urban areas. Chickens offer a continuous source of fresh eggs and arguably help with pest control. Conversely, chickens can be loud, messy, attract coyotes, and arguably are best suited for rural, country life. Because many municipalities have legalized raising chickens in residential zones, HOAs are more frequently encountering owners maintaining chickens in their communities, some even allowing their chickens to roam the common area alongside the family dog.

If the HOA’s governing documents prohibit chickens (also referred to as poultry or livestock), the HOA may require residents to remove their feathered friends from the community. It is important to note that while municipalities may allow a limited number of domesticated chickens in residential zones, it is well-established that an HOA’s governing documents may be more restrictive than local ordinances. So, if the county or city allows chickens, but the more restrictive governing documents do not, the governing documents control.

Chickens may also be prohibited by nuisance restrictions contained in the governing documents. The aforementioned noise produced by roosters along with frequent, malodorous, and non-solid waste arguably constitute an ongoing violation of nuisance restrictions sufficient to require the chickens’ removal.

Oftentimes, when an HOA requires the removal of a prohibited animal, requests to allow the animal to remain on the premises as an emotional support animal (“ESA”) arise. Under the federal Fair Housing Act, which applies to homeowners associations, a housing provider is required to make reasonable accommodations for assistance animals including ESA’s even though they are not trained to do work or perform tasks. Allowing an emotional support animal which would otherwise be prohibited under the Association’s governing documents is a recognized type of reasonable accommodation for a disability under California’s Fair Employment and Housing Act. (Auburn Woods HOA v. FEH Commission (2004) 121 Cal App. 4^th 1578).

Chickens are not typical ESA’s like dogs or cats, but the creativity of Americans is without bounds as evidenced by the wide variety of alleged ESA’s seen on commercial flights including peacocks, turkeys, pigs, monkeys, and hamsters. Due to the complex legal issues and potential exposure to liability associated with reasonable accommodation requests, it is recommended to contact legal counsel immediately if a resident requests to keep a chicken or any other otherwise-prohibited animal due to a disability or medical condition.

-Blog post authored by TLG Attorney, Carrie N. Heieck, Esq.

New Client: Harbour Pacific Homeowners Association

Published on: May 4, 2022 | by Steven J. Tinnelly, Esq.

Harbour-Pacific-300x169 It’s our privilege to welcome Harbour Pacific Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Harbour Pacific is located just steps from Sunset Beach and the harbor boardwalk in Huntington Beach. Residents enjoy a community pool, two spas, a sand volleyball court, and shared boat slip.

Our HOA lawyers and staff look forward to working with Hollywood Colony’s Board and management.

New Client: The Hollywood Colony 2, Inc.

Published on: April 27, 2022 | by Steven J. Tinnelly, Esq.

Hollywood-Colony-300x169 It’s our privilege to welcome The Hollywood Colony 2, Inc. to Tinnelly Law Group’s growing family of HOA clients.

Hollywood Colony is a condominium community located in the heart of the Hollywood Media District. Residents enjoy roof top decks with breathtaking views of the Hollywood hills, city lights, and iconic Hollywood sign.

Our HOA lawyers and staff look forward to working with Hollywood Colony’s Board and management.

The Impact of a Homeowner Filing Bankruptcy and Receiving a Discharge on Assessment Collection

Published on: April 20, 2022 | by Corey Todd, Esq.

*Asked & Answered

Asked – Our HOA Board of Directors has been advised that a homeowner who is delinquent in their payment of assessments has filed bankruptcy. If the homeowner obtains a bankruptcy discharge does the HOA have to write off the delinquent account as a bad debt?

Answered – Not necessarily. While a homeowner declaring bankruptcy affords them various protections from creditors attempting to collect debts, such as the imposition of an automatic stay, the Association is not necessarily without recourse if the Homeowner achieves a discharge.

The most common two (2) types of bankruptcy actions that may impact an HOA’s collection of delinquent assessments are Chapter 7 (liquidation) and Chapter 13 (repayment plans). Each type of bankruptcy filing has varying attributes that may uniquely apply to an HOA.

Regardless of which type of bankruptcy a homeowner files, the Association should immediately split their account into two (2) pre-petition debts (i.e. those that occurred before the bankruptcy filing) and post-petition debts (those accrue after the filing). This is an important action because a discharge can only relieve a homeowner of the personal obligation to pay the pre-petition debts. However, the homeowner would still be obligated to pay the HOA all post-petition debts. (See 11 U.S.C. § 523(a)(16).)

For a homeowner who achieves a discharge of the homeowner’s personal obligation to repay pre-petition debts, a discharge would not affect the HOA’s assessment lien or judgment lien with the right of judicial foreclosure that was recorded prior to the bankruptcy filing. Because the liens are recorded against the homeowner’s property, they are non-dischargeable in the bankruptcy case. As a result, once the homeowner achieves the discharge, the HOA can still proceed with foreclosure of the property and satisfy the delinquency through that mechanism. This may also incentivize the homeowner to enter into a reaffirmation agreement to voluntarily repay the pre-petition debts to avoid foreclosure of the HOA’s lien.

Considering the foregoing, it is incumbent on all Boards to ensure that they secure a homeowner’s debt through an assessment lien to ensure, among other reasons, that the HOA still has recourse against a homeowner who declares bankruptcy and obtains a discharge.

Contact your HOA attorney to conduct an in-depth analysis of the specific bankruptcy case to determine how the HOAs interests will be best served, including the filing of proof(s) of claim to receive disbursements under the active bankruptcy plan.

-Blog post authored by TLG Attorney, Corey L. Todd, Esq.

New Client: Greenhills Master Association

Published on: April 13, 2022 | by Steven J. Tinnelly, Esq.

Greenhills-300x169 It’s our privilege to welcome Greenhills Master Association to Tinnelly Law Group’s growing family of HOA clients.

Greenhills is a master-planned community located in Chowchilla. It is a gated community containing approximately 10 different neighborhoods with varying architectural styles, lot sizes, home sizes, and amenities. The Pheasant Run golf course is intertwined throughout the center area of Greenhills, and there are 9 man made lakes.

Our HOA lawyers and staff look forward to working with Greenhills’ Board and management.

New Client: Corona Highlands Property Owners Association, Inc.

Published on: April 6, 2022 | by Steven J. Tinnelly, Esq.

Corona-Highlands-300x169 It’s our privilege to welcome Corona Highlands Property Owners Association, Inc. to Tinnelly Law Group’s growing family of HOA clients.

Corona Highlands homes are located in Corona Del Mar. Residents enjoy private beach access gates, nearby trails through Crystal Cove, and a 10-minute walk to Corona Del Mar’s downtown village.

Our HOA lawyers and staff look forward to working with Corona Highland’s Board and management.

How to Determine Whether Compliance Fines are Reasonable

Published on: March 30, 2022 | by Steven J. Tinnelly, Esq.

*Asked and Answered

Asked – How long should homeowners associations levy compliance fines against non-compliant Members before transferring the files to legal counsel?

Answered – Monetary penalties (also known as “fines”) should be levied against non-compliant homeowners so long as the purpose of the fines is to deter the homeowners’ unwanted behavior and resolve their outstanding violations. Fines should never be levied to punish the homeowners or raise money for the association. As soon as it becomes clear that fines are not effectively compelling compliance with the governing documents, the Board of Directors (“Board”) should consider alternative enforcement strategies, like Alternative Dispute Resolution (“ADR”) or litigation, in lieu of continued fines.

Associations have a duty to enforce their governing documents. (Nahrstedt v. Lakeside Village (1994) 8 Cal.4th 361, 383.) Typically, the governing documents also grant the Board with rulemaking authority, which impliedly authorizes the Board to compel compliance with those rules by imposing monetary penalties. (Liebler v. Point Loma (1995) 40 Cal.App.4th 1600, 1613.) All fines must be levied in accordance with the association’s published fine schedule, which should be distributed to Members in the annual policy statement.

In order for compliance fines to be enforceable, the Board must ensure that the fines are reasonable. There is no bright line rule to make this determination. Instead, the Board must consider whether the fine amount actually serves to deter homeowners from violating the governing documents. This requires Boards to tailor the fines to the demographics of their communities. What is reasonable in one community may not necessarily be reasonable in another.

If, after imposing several fines, an association is not able to compel a homeowner to comply with the governing documents, then the Board should not continue to levy additional fines. Otherwise, the association may be unable to collect those fines, as they were not reasonably levied to compel compliance. Similarly, Boards should consider waiving previously imposed fines after homeowners comply and resolve their outstanding violations, as the fines served their intended purpose.

Homeowners associations should ensure that they adhere to their reasonable fine schedules, which were designed to compel homeowners to comply with the governing documents. However, as soon as it becomes clear that monetary penalties are not effective deterrents, then the outstanding matters should be transferred to legal counsel for further review and advisement.

-Blog post authored by TLG Attorney, Sarah A. Kyriakedes, Esq.

New ‘Community Association Update Newsletter’ – Issue 54

Published on: March 23, 2022 | by Steven J. Tinnelly, Esq.

New-Newsletter-Template-300x167 In case you missed it, Issue # 54 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

Unmasking Your HOA’s Common Area Facilities
How to Handle Potential Conflicts of Interest
Association Management and the Attorney-Client Privilege
What is the Proper Procedure to Adjourn the Annual Meeting?
Can the Board Reconsider an Approved Motion?
Can Private Parties Restrict Parking on Public Streets?

A link to the newsletter is here.

Need to be added to our mailing list? Click here to sign up. Links to previous editions of our newsletter can be found here.

New Client: The Williamshire Owners Association

Published on: March 23, 2022 | by Steven J. Tinnelly, Esq.

Williamshire-300x169 It’s our privilege to welcome The Williamshire Owners Association to Tinnelly Law Group’s growing family of HOA clients.

The Williamshire is a condominium community located in the city of Tustin. Residents enjoy a pool, spa, and fitness center.

Our HOA lawyers and staff look forward to working with The Willliamshire’s Board and management.

New Client: Amethyst at Parasol Park Neighborhood Association

Published on: March 16, 2022 | by Steven J. Tinnelly, Esq.

Amethyst-300x169 It’s our privilege to welcome Amethyst at Parasol Park Neighborhood Association to Tinnelly Law Group’s growing family of HOA clients.

Amethyst by the New Home Company is one of the newest neighborhoods within the Great Park Neighborhoods master-planned community. Residents enjoy parks, pools, playgrounds, outdoor kitchen and a community GreenHouse.

Our HOA lawyers and staff look forward to working with Amethyst’s Board and management.

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