Articles Posted in CC&R and Rule Enforcement

By David C. Swedelson, Partner, SwedelsonGottlieb This article was prepared for a recent program that David spoke at dealing with rule enforcement.

There is no disputing the fact that serving on the board at any community association is time consuming and can often become frustrating. You have a multitude of issues competing for your attention – whether it’s adopting the budget, monitoring performance and renewing service contracts, insurance renewals, supervision/hiring and retention of employees or collecting delinquent assessments. In addition to running the association’s business, board members are also faced with the task of enforcing rules and regulations.
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Post by David Swedelson, Partner, SwedelsonGottlieb

We are often asked to assist California community associations dealing with unauthorized homeowner commercial activities when prohibited by the association’s governing documents. Usually, the issue is whether the commercial activity will or is impairing the residential character of the community.

So, for example, we have been called upon to deal with a hair stylist, an employment headhunter, a psychologist, and other service-oriented businesses that had a number of clients and/or employees coming into a gated community or locked building. Once, we dealt with a refrigerator repair service where customers were coming into the association to drop off or pick up their refrigerator. Another time, it was an auto repair business being run out of a garage. And of course, lately we have been dealing with more then one marijuana growing facility. You get the picture.

By David C. Swedelson, Partner, SwedelsonGottlieb

Community Association Institute’s (CAI) Fast Track News Bulletin reports that Florida condominium association residents who are delinquent on their assessments could run the risk of losing their cable and internet service if a new bill passes.

According to the March 1, 2011, edition of the Orlando Sentinel, the legislation, which would go into effect July 1, 2011, would give condominium associations the right to cut off cable and internet service of residents who are 90 days overdue. In Florida, associations are already allowed to ban delinquent residents from common amenities such as pools, gyms and the like, and the bill would have cable and internet counted as common amenities as well. While the list of what’s considered common amenities seems to keep growing, this proposal makes it clear that associations will not have the power to shut off residents’ water or electricity.
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From Community Association Management Insider

A community in El Dorado County, California has historically allowed some sport shooting. However, when one board member wanted to change that, he started the process to change the governing documents to completely ban the discharge of firearms and air-guns and eliminate all target and other shooting throughout the gated equestrian community.

One member of the community, who is also a National Rifle Association (NRA) member, brought this issue to the attention of the NRA’s California attorneys. And they assisted him and other neighbors in defeating the attempt to do away with shooting in the community.

By David C. Swedelson, Esq.

Many planned development community associations have built into their CC&Rs the obligation of the association to maintain property owned by some and often not all of the owners. Sometimes, they are called “Association Maintenance Areas” or “Association Easement Areas”. Sometimes, there is no special name for the area, but the association’s CC&Rs specify that the association will maintain a slope area or landscape area that benefits the association or the owners, typically for aesthetic reasons. And sometimes, disputes erupt over just how far the association’s maintenance responsibilities extend.
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By SwedelsonGottlieb, Community Association Attorneys

We recently assisted an association’s board of directors with addressing the question of whether the association has a legal obligation under its governing documents (or under applicable law) to install, or allow for the installation of, charging stations for homeowners’ electric cars. In this case, the homeowners’ parking spaces were exclusive use common area that were assigned to specific units under the association’s condominium plan and unit grant deeds. The owner at issue wanted to install the charging device in her exclusive use common area parking space.

The first issue we had to address was whether there were any association rules or architectural guidelines in effect that prohibited the storage or placement of items in parking spaces. We advised the Board that if there were, and if there was no specific exception to that rule that allows for the storage or placement of an electric vehicle charger in parking spaces, then the board would need to prepare and adopt a rule modification allowing for that installation, following the Civil Code requirements for operating rules.
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By Sandra L. Gottlieb, Esq.

Our 55 and older age-restricted communities sometimes ask whether they are required to survey and certify that they comply with the 55 and older qualification standards (if you live in or are on the board of an age-restricted community, you likely know what this means), seeing as they have already surveyed and certified residents in units. They do not want to have to recheck and recheck, year after year, inasmuch as the owners are not getting any younger over time.

For those that are wondering what the heck we are talking about, the Fair Housing Amendments Act of 1988 (the “Act”) provides an exception for communities for older persons (55 and older), which allows restrictive occupancy without violating the Act by discriminating against families with children or against persons that are 54 years of age or younger. The FHA has been amended by the Housing for Older Persons Act of 1995 (“HOPA”). HOPA sets forth standards, which allows, if followed, the 55 and older communities to satisfy the exemption by completing the age restriction requirements.

You know you’ve been meaning to get around to it for a long time now. Your manager has probably been nudging the board as well, hoping that maybe this year will be the year your association decides to get rid of those outdated CC&R and Bylaw provisions, making everyone’s job a lot easier.

Amending your governing documents does not have to be a painful process. Some boards of directors will not even consider amendment, dismissing it out of hand as too time-consuming or too expensive with little chance for success. But if the board truly commits to the process and engages in an active marketing campaign to support the approval of the amendment by the required secret ballot vote, we find that our association clients are able to get some great amendments passed by their members, quickly and effectively.

What’s bothering you?

By SwedelsonGottlieb, Community Association Attorneys
There tends to be a great deal of confusion over service, companion and therapy animals, and, particularly, service, companion and therapy dogs. While the Americans with Disabilities Act does not generally apply to community associations unless an association opens its common areas and recreational facilities to the general public (e.g. allowing people other than residents and their guests to use the association’s pool, rent the association’s clubhouse or take lessons at the association’s tennis court), state and federal fair housing laws do apply to community associations. Association boards and managers should be aware that homeowners do have the right, subject to certain restrictions, to bring service, companion and therapy dogs into their separate interests, even when those dogs violate pet restrictions contained in an association’s governing documents (e.g. keeping or bringing the dog into the association’s development violates restrictions on the number of dogs, dog weight limits or dog breeds).
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