Articles Posted in CC&R and Rule Enforcement

By David C. Swedelson, Esq. and Ryan D. Barrett, Esq., Community Association Attorneys

We recently published an article on secondhand smoke regarding its impact at condominium associations and how it can constitute a nuisance. Since almost every community association’s CC&Rs prohibit noxious activity, this is a fairly common and accessible means of addressing the issue. However, enforcing a nuisance claim has its challenges and drawbacks, namely, the subjective nature of defining a nuisance makes enforcement difficult, and the fact that each instance of a nuisance must be addressed individually does not make prosecution of these claims all that easy. But this is not to say that these claims are not enforceable or that California community associations should not take action, when appropriate, to eliminate nuisances.

A budding trend among community associations, or at least a topic of significant consideration, is to amend the CC&Rs to include the adoption of a community-wide smoking ban, restricting all homeowners from smoking anywhere within the Association, including their own units. While the adoption of such a ban has been historically difficult, in many areas, particularly in major cities of California, the climate is ripe for change.
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You may be asking what the heck a CC&R Cover Sheet is, as we expect that over time, this requirement has been forgotten. As provided for in amended Government Code Section 12956.1, which has been the law for at least 10 years, California community associations that provide a copy of the declaration (CC&Rs) must place a cover page or stamp on the first page of their CC&Rs stating, in at least 14-point boldface type, the following:

If this document contains any restriction based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status.

In October of 2011, Governor Brown signed AB 887 into law, which adds the characteristics of “gender”, “gender identity” and “gender expression.” AB 887 also amended California Government Code Section 12956.1 to require associations to place additional language on the cover sheet, and that language has been incorporated into the language in bold above.

By David C. Swedelson, Esq., Condo and HOA Attorney

Recent reports indicate that only 12% of California adults smoke cigarettes. The problem is that they all live in condominiums, or so you would think from all the reports of problems we are receiving relating to complaints from the non-smokers who do not want to smell cigarettes.

And the issue is not limited to cigarettes; we are hearing a lot of complaints regarding pipes, cigars and marijuana. And marijuana is becoming one of the more difficult issues to deal with, as the smokers are not that considerate, and those with medical marijuana cards think that they are impervious to criticism or the complaints of others. But the fact is that smoke can be a nuisance, and nuisance is prohibited by just about every California community associations’ CC&Rs.

Someone saying that their legal right to smoke trumps the rights of the other owners is like saying that an owner can maintain their seeing/emotional support animal in violation of the CC&Rs even though the dog barks all night. I trust you get the point that no one can create a nuisance.

Because secondhand smoke is injurious to health according to most experts, many states and local governments, even low levels of exposure can be considered a nuisance. Many condominium associations are adopting or considering the adoption of restrictions or prohibitions on smoking in the common areas, exclusive use common areas such as balconies and patios, and even units.
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By David Swedelson, Senior Partner, SwedelsonGottlieb Condo Lawyer and HOA Attorney

Some condominium and homeowner association residents think that their pet is well trained and does not need to be leashed, and they ignore the association’s rules regarding leashes, believing they do not apply to their well-trained pet. They just do not get the fact that many people are afraid of dogs, especially when they are off leash. What they also do not understand is that just as a municipality has the power to cite a citizen for not having their dog on a leash, so too does a California condominium or homeowner association have the right to enforce its leash rules.
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Blog post by David Swedelson, SwedelsonGottlieb Partner, Condo Lawyer and HOA Attorney

Think the court will not award significant attorney’s fees in a breach of CC&Rs case? In Klein v. Nyamathi (Bell Canyon HOA), a recent (unpublished) Court of Appeals Decision, the Nyamathis were found liable to their neighbors at a planned development located in the Bell Canyon area of Southern California for almost $400,000 for improperly grading their property and, as a result, flooding the Kleins’ property under nuisance and breach of contract/CC&Rs theories. The Kleins also sued their HOA, claiming that the board had failed to enforce the CC&Rs as to their neighbors; the HOA settled before trial.

The trial court also awarded the Kleins attorney’s fees of $552,655.75 and costs of $63,595.83, over $600,000. The Nyamathis appealed, contending that while the Kleins may be entitled to their attorney’s fees for the breach of the CC&Rs claims, they were not entitled to all of the fees, as some of the claims were not covered by the CC&Rs. They argued that the fees must be apportioned. The Court of Appeal did not agree.

View the slideshow presentation prepared by David Swedelson of SwedelsonGottlieb and Diana Wright of Action Property Management for a recent seminar held by the Community Associations Institute – Orange County Regional Chapter.

By David Swedelson, Senior Partner, SwedelsonGottlieb, Condo Lawyer and HOA Attorney

We are often asked by boards and managers whether a California condominium or planned development homeowners association (HOA) has the right to have a dog or another pet removed from the association because it violates the association’s governing documents. Sometimes, the violation has to do with the dog creating a nuisance, barking incessantly or creating other problems such as being too aggressive and threatening. Other times, the dog is too large and does not comply with the association’s governing documents, which may limit the size of the dog, or other pet for that matter, that can be maintained at the association. And sometimes, the CC&Rs may limit the number of pets an owner can maintain in their unit.

The answer is yes, an association can seek to have the pet removed if the resident’s pet is violating the association’s governing documents. And there is a good chance that an association would be able to have that pet removed. Such was the case in the San Vicente Villas Homeowners Association vs. Cohen lawsuit which we prosecuted all the way to the California Court of Appeal. We wrote an article some time ago following the Appellate Court’s decision in 2003 confirming the trial court’s decision that Ms. Cohen’s dog must be removed from the Association. Follow this link to our article, The $1000 Per Pound Dog.
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Blog posting by SwedelsonGottlieb Senior Partner David Swedelson, Condo Lawyer and HOA Attorney

We have had to deal with our share of unauthorized playhouses in the past. And we have dealt with therapy pets in the past. But a therapy playhouse? Really!? As reported in Community Association Institute’s FastTracks email newsletter, a Lexington, Kentucky family’s legal battle with their homeowner’s association over the right to keep their disabled son’s “therapy playhouse” which was not approved by the association has “caused quite the stir, and is heating up as Kentucky’s legislature and a non-profit advocacy group get involved with the dispute.”

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Blog posting by David C. Swedelson, Condo lawyer and HOA attorney; Senior Partner SwedelsonGottlieb

Amazing story out of Florida involving an attorney/owner of a condominium who asked her condo association to place a trash receptacle in the mail room so she could have a convenient place to dispose of her junk mail. When her association declined the request because of a concern about having to maintain that trash receptacle (as owners may put more than junk mail in the trash), the owner decided that she would just dump her mail on the floor. This is a true story; you can’t make this stuff up.
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