HOA Lawyer Blog

Can Private Parties Restrict Parking on Public Streets?

Published on: December 1, 2021 | by Steven J. Tinnelly, Esq.

*Asked and Answered

Asked – Can Homeowners Associations Restrict Parking on Public Streets?

Answered – Possibly. The restrictions set forth in the CC&Rs are known as equitable servitudes that “run with the land.” This means that when an owner takes title to the property, he is automatically bound by the restrictions in the CC&Rs, which are recorded against his property. Those restrictions continue to burden and benefit every successive owner, who later takes title to the property.

The CC&Rs contain restrictions pertaining to the maintenance of the encumbered land, but they also contain restrictions that regulate how members can use the land. When dealing with parking restrictions that attempt to regulate the aesthetics of the community, a reasonable argument could be made that the restrictions apply to all member conduct, regardless of whether that conduct occurs on private or public streets within the development.

California courts have not yet published caselaw to address this issue. There is, however, an unpublished case from 1978, Lake Forest Community Association v. Noble (Orange County Superior Court No. 197563), in which the California Court of Appeal found that private parties can regulate parking on public streets in order to protect the association’s property values. In this case, the homeowner was parking a truck camper on the public street in front of his property in violation of the CC&Rs. The Court found that the homeowner was contractually obligated, via the CC&Rs, to refrain from parking his truck camper anywhere within the community, including the public streets.

Since this case was not published, it is not controlling law. This means that another California judge might rule differently. Although, homeowners associations have reasonable grounds to assert that the parking restrictions in their CC&Rs apply to member conduct on both public and private streets within the community in order to preserve the property values.

CC&Rs restrictions dealing with parking vary greatly from association to association; therefore, the Board of Directors should first consult with an attorney to determine whether they will be able to successfully enforce parking restrictions on public streets within the development.

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

New Client: Parkside Heights Owners Association

Published on: November 24, 2021 | by Steven J. Tinnelly, Esq.

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

Parkside Heights is a brand new collection of single family homes located in the city of Hayward. Residents enjoy a community park and playground.

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

New Client: Canterbury Court Community Association

Published on: November 17, 2021 | by Steven J. Tinnelly, Esq.

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

Canterbury Court is a brand new community of detached condominiums located in the city of Yorba Linda. Residents enjoy a pool, barbecue area, and community parks.

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

New ‘Community Association Update Newsletter’ – Issue 52

Published on: November 10, 2021 | by Steven J. Tinnelly, Esq.

New-Newsletter-Template-300x167 In case you missed it, Issue # 52 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

AB 1101 Signed! Welcome Clarity to HOA Financial Protection Requirements
AB 502 Signed! Board Elections by Acclamation
What to Do if There is HOA Slope Movement/Failure
Due Process Regarding an Association’s Disciplinary Procedures
Does Our Association Have View Rights?

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.

Does Our Association Have View Rights?

Published on: November 8, 2021 | by Corey Todd, Esq.

*Asked & Answered

Asked – Our HOA has been receiving architectural applications from Owners who are requesting to install tall trees or increase the height of their property walls for additional privacy. However, several neighbors have expressed their stark opposition to any modifications that would impact the views from their property. Is our Architectural Committee obligated to approve the applications provided it complies with all other requirements, or should the application be denied to preserve the neighbor’s views?

Answered – It depends on the language contained within the HOA’s governing documents.

At the outset, it is important to recognize that all owners of real property located within the Association’s community are subject to the duties, obligations, and restrictions set forth in California Civil Code sections 4000-4765, the Declaration, and the Association’s other “Governing Documents” as defined in Civil Code section 4150.

Included in most Governing Documents is the requirement that any Owners that wish to modify the exterior of their property must first submit an architectural application (“Application”) to the HOA’s Architectural Committee (“Committee”) for approval. Furthermore, most HOAs adopt some type of Architectural Standards that clearly define the aesthetic requirements that must be met to obtain approval from the Committee.

Architectural Standards set forth an association’s policies and procedures regulating a homeowner’s ability to make architectural improvements and modifications to the homeowner’s separate interest, as well as to common area and exclusive use common area.

However, while almost all HOAs establish some type of Committee, Architectural Standards, and Application review process, not all HOAs have provisions regarding the preservation of views or clearly define what constitutes a “view”.

To provide guidance in view dispute scenarios, in Posey v. Leavitt, the California Court of Appeals for the Fourth Appellate District held that absent CC&R provisions, members have no right to air, light, or an unobstructed view. (Posey v. Leavitt, (1991) 229 Cal.App.3d 1236.) As a result, without an expressed provision protecting a homeowner’s right to a view, the Association is under no obligation to deny the Application on that basis.

Under circumstances where the HOA’s Governing Documents include some type of vague view protection, we recommend that the Association adopt a conservative approach to avoid overstepping which would result in a costly lawsuit. Due to the high correlation between property values, views, and a member’s interests in preserving the same, we recommend that HOAs contact their attorney to conduct a thorough review of their Governing Documents to provide clear direction on view protections within their community.

Contact your attorney to evaluate your HOA’s Governing Documents, view protections, and to update your existing Architectural Standards.

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

New Client: Barrington Place Community Association

Published on: November 3, 2021 | by Steven J. Tinnelly, Esq.

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

Barrington Place is a brand new community of single family homes located in the hillside town of Jurupa Valley. Residents enjoy a community pool, recreation area, and tot lots.

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

New Client: Somerset Cottages Homeowners Association

Published on: October 27, 2021 | by Steven J. Tinnelly, Esq.

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

Somerset Cottages is a collection of single family homes located in the city of Chino Hills. Residents enjoy a community pool, spa, and playground.

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

What to Do if There is HOA Slope Movement/Failure

Published on: October 20, 2021 | by Vivian Tran, Esq.

LBLandslide060105 Southern California is known for the warm weather, relaxing atmosphere, and in certain cases, picturesque Homeowners Associations (HOA) situated high enough to see the ocean. However, what happens when those picture-perfect HOAs have a slope movement/failure? What should the Board of Directors (Board) do?

Slope Maintenance

Slopes within an HOA development are usually maintained by the HOAs via a maintenance agreement, by the Lighting and Landscape Assessment District (LLAD), or by the homeowners themselves. Slope maintenance involves management of sub-surface and above-surface areas.

Sub-surface maintenance will most likely involve vegetation root volume and irrigation system preservation, which is integral in supporting the slope structure itself. For steeper slopes, there might be a heavier support system built into the slope. Above-surface maintenance will most likely involve vegetation/brush preservation for aesthetical purposes and to prevent fire hazards, among other things.

The HOA’s management should routinely follow-up with the HOA’s landscape maintenance crew to monitor the slope, v-ditch (concrete channel usually at the bottom of a hill to collect drainage) and other drainage routes, and water pipelines. If maintained properly—barring extenuating circumstances—naturally occurring slope movement should be very minimal. It should be noted that there is always some sort of slope movement due to erosion and time. However, should abnormal slope movement/failure be noticed, the HOA’s management company and Board should and must be notified immediately.

Improvements on Slopes

The structural integrity of slopes is very complex. This means homeowners should consult with the HOA’s management and Architectural Committee before placing any improvements on or surrounding the slope as improperly engineered improvements may cause unwanted slope movement/failure.

Improvements may vary, but the most common ones are plants, fences, poles, pipes, decks, patios, and walkways. The Board should be aware of any improvements that change or interfere with the contour/drainage/support system of the slope. It would be prudent to require homeowners to submit an Architectural Application consisting of detailed improvement plans that have been vetted by a licensed geotechnical expert familiar with slopes. Furthermore, to cover all bases of liability, the Architectural Committee should retain its own geotechnical expert to analyze whether allowing said improvement(s) would be detrimental to the integrity of the slope. Such measures might cost a bit upfront, but compared to a major slope movement/failure, a geotechnical bill to analyze improvement plans would be inconsequential.

Board Action

An HOA’s Board will be called upon to act in the event of slope movement/failure. It is important for the Board to take immediate action as slope movement/failure can be detrimental to the physical wellbeing of everyone in the community and the homeowners’ properties involved. Additionally, immediate action will ensure that more data may be collected for the analyzation of the slope movement/failure. Here are a few things for the Board to consider:

Note the approximate time of the slope movement/failure
Catalog picture and video evidence of the slope movement/failure and any homeowners’ property damage
Contact the HOA’s general counsel
Create an executive committee to promptly handle all matters pertaining to the slope movement/failure
Consult/retain a geotechnical expert as soon as possible
Contact the HOA’s landscape maintenance crew regarding any potential broken irrigation pipelines and/or hazardous vegetation, if applicable (e.g., if there is a leak, the maintenance crew should try to perform temporary repairs/stoppage, or as advised by a geotechnical expert)
Contact the HOA’s insurance carrier and tender claims as necessary (note that some HOA policies might have exclusions regarding earth movement/slope failure, but the HOA’s general counsel will be able to navigate those areas with the insurance representative)
Involve the homeowners’ insurance carrier if they have property damage due to the slope movement/failure
Prepare and have ready past HOA water irrigation reports, water invoices, landscape maintenance invoices…etc.
Review the HOA’s budget and all/pending capital expenditures
Consider winterizing the slopes if the slope movement/failure occurs before or during the rainy season

The following above is by no means an exhaustive list, but it is the bare minimum the Board should do in the event of a slope movement/failure. After the HOA’s counsel and geotechnical expert have been consulted, there would usually be four (4) phases to go through before the slope is back to its original condition: (1) preliminary above-surface investigations (i.e., measurements of movement/failure, noting any damages, reviewing HOA records…etc.); (2) sub-surface invasive investigations (i.e., digging, collecting soil samples, lab analyzation…etc.); (3) drawing building/repair plans and obtaining city approval; and (4) rebuilding/repairing the slope. The HOA should expect each phase to take a minimum of one (1) month if all parties—Board, homeowners, counsel, insurance carriers…etc.—cooperate. However, if parties are uncooperative, the phases can be delayed by months if not a year or more. Moreover, if there is slope movement/failure during the rainy season, the slope must be winterized (e.g., protected against further rainfall, water pooling) and rebuilding/repairs will likely not begin until the spring when the ground is a bit drier.

The Board must keep in mind that should the slope movement/failure be extreme, the costs associated with determining the cause and rectifying any damages will be vast (~ $300K if not more). This is not taking into account any legal disputes between the parties as liability and responsibility for the slope movement/failure will not be clear until after phase 2 investigations. Therefore, if HOAs have a slope movement/failure, it is best to contact general counsel immediately!

-Blog post authored by TLG Attorney, Vivian X. Tran, Esq.

New Client: The Vineyards at Dublin Greene Owners Association

Published on: October 13, 2021 | by Steven J. Tinnelly, Esq.

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

The Vineyards is a condominium community located in the city of Dublin. Residents enjoy a community pool and spa.

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

AB 1101 Signed! Welcome Clarity to HOA Financial Protection Requirements

Published on: October 11, 2021 | by Carrie Heieck, Esq.

*New Legislation

AB 2912, passed in 2018, provided welcome protections to homeowners in HOA’s from fraudulent activities by those entrusted with managing an HOA’s finances. AB 2912’s protections included: 1) requiring Associations to secure fidelity bond insurance in an amount equal to or exceeding current reserves, plus three months of assessments; 2) requiring a monthly review of financial statements rather than quarterly; and 3) prohibiting electronic transfers of funds without board approval. However, certain provisions of AB 2912 were unclear.

To settle any confusion, AB 1101 was passed by the California Legislature in September of 2021. Effective January 1, 2022, Civil Code Sections 5380, 5502, and 5806, will be amended in order to clarify existing law by:

1) Specifying that HOA funds shall be deposited into accounts insured by Federal Deposit Insurance Corporation or the National Credit Union Administration Insurance Fund. This ensures that HOA funds are properly preserved and not invested in any high-risk investments or stocks.

2) Establishing clear limits before board approval is required for the transfer of HOA funds. While AB 2912 provided a process by which HOA’s should approve major expenses, the process for calculating those limits was somewhat confusing and was subject to change based on the amount of money on deposit in the HOA’s bank accounts. With AB 1101, the process is clear. For HOA’s with 51 or more units, transfers of $10,000.00 or more must be approved by written approval of the board. For HOA’s with 50 or fewer units, transfers of $5,000 or greater must be approved in writing by the Board.

3) Specifying that the HOA must not just maintain fidelity bond coverage, but that it must now also maintain crime insurance and employee dishonesty coverage, or their equivalent, for dishonest acts of the person or entity and their employees. This coverage would extend not just to the HOA and its directors, officers and employees, but also to managing agents and their employees.

Common sense legislation that protects the financial interests of HOA’s, which are unfortunately often targets for embezzlement, is a breath of fresh air. As always, HOA’s with questions regarding new legislation or legal requirements related to insurance or finances, should contact their HOA lawyer.

-Blog post authored by TLG Senior Attorney, Carrie Heieck.

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