Articles Posted in Current Affairs

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

Owners often want to hold their condo or HOA liable for their damages suffered after a burglary of their unit or home or other criminal act. They claim that their association was required to provide (more) security, that the gates were not working or that a light in the common area was out. An association’s liability may depend on many factors such as whether it is a secured complex, the nature of the security services provided, if any, the association’s knowledge of criminal activities in the area and whether the criminal activities are the kind of activities that the complaining homeowner has complained about, etc. But is an association liable merely because it does not provide security? Is the lack of security the cause of the crime? We have found that sometimes the answer to these questions is “yes”. However, more frequently, the answer to these questions is likely “no,” that the association is not liable for the alleged damage(s). And that was the holding in a recent unpublished California court of appeal decision.

In the Girardi v. San Rafael Homeowners Association case, a husband (a prominent attorney) and wife who owned a home in a luxury planned development (located in Pasadena) sued the Alta San Rafael HOA, where their home is located, for negligence after their house was burglarized twice (jewelry and other valuables with a value in excess of a million dollars was alleged to have been taken). The Girardis claimed that their association owed them, as owners, a duty to keep the premises reasonably safe, and breached that duty by failing to hire a security guard, monitor gates, and maintain the streetlights.

Blog post by David Swedelson, Senior Partner at SwedelsonGottlieb, Community Association Attorney; Condo Lawyer and HOA Attorney

We have been receiving calls and emails asking whether California condo, planned development, or stock cooperative HOAs are required to comply with a 2010 change in Federal law that requires that pool lifts be installed at public pools. We are hearing about this now because there is a deadline for their installation.

Have not heard about this pool lift requirement? The 2010 changes to the ADA (Americans with Disabilities Act) for public pool facilities require public pools to be more accessible for disabled persons. Small pools must have at least one accessible means of entry, either a lift or sloped entry. Larger pools must have two accessible means of entry such as a lift, sloped entry with handrails, transfer wall with grab bar, transfer system with steps, or accessible pool stairs. Slope entries and lifts are by far the most common.

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Blog article by David Swedelson, California Condo Lawyer and HOA Attorney, Partner at SwedelsonGottlieb, Community Association Attorneys

We sometimes see community associations that are out of control, treating some of the owners or residents very badly, refusing to make repairs, perform maintenance in or around some owners’ units or homes or worse. As this case out of Hawaii tells us, this type of wrongful conduct can have disastrous results.

According to a news article, a jury awarded Molokai residents and condo owners $3.87 million in general and punitive damages against their condominium association. The couple said they were targets of threats, harassment and intimidation by an unlicensed contractor (who was alleged to have had a criminal record and was hired to do various tasks around the Ke Nani Kai Condominium in West Molokai) and the resident manager.
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Blog post by SwedelsonGottlieb Partner David Swedelson, Condo Lawyer and HOA Attorney

Interesting and thought provoking article by Florida community association attorney Donna DiMaggio Berger, Esq. that addresses an issue that many of us have thought about, namely a community association’s responsibility for volunteer Community Watch members as well as for the acts of other association volunteers. Follow this link to read the article.

For those that do not know the story, Trayvon Martin, a 17 year old kid was shot and killed by on February 26, 2012 by a volunteer Captain of the Neighborhood Watch in a gated Orlando, Florida community association.
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Blog post by David Swedelson, Partner, SwedelsonGottlieb, California condo lawyer and HOA attorney

I recently posted a blog article and link to my article about the $55,000 dog. Out of Toronto comes word of an (almost) $40,000 parrot. Some owners are finding that their pets can be very expensive if they do not comply with their condominium or homeowner associations’ governing documents.

According to the article (follow this link), a Toronto (Canada) condominium association took action when neighbors complained of hearing the parrot. Apparently, this condominium association has a no pet policy. The homeowner, who owned the unit at the association since 1989, thought that the “no pet” policy applied only to dogs and cats. At first, the owner claims he tried to make a joke of the dispute, writing a sarcastic letter to the board asking if it would be OK if he had a goldfish. The answer was no. Apparently, his association takes the prohibition on pets very seriously, as they should.

By David C. Swedelson, Esq., Senior Partner at SwedelsonGottlieb; Condo Lawyer and HOA Attorney

Not a week goes by that we do not hear from a manager or member of a board of directors inquiring as to whether or not the association has to enforce the governing documents. Often, the enforcement “issue” has to do with an alleged nuisance that may be impacting only one owner such as cigarette or marijuana smoke, noises from hard surface flooring in the unit above, or an odor. This question often leads to debate between board members, as to whether the association is absolutely obligated to enforce the restrictions and the CC&Rs.

Attorneys have for years generally followed the concept that community associations should not likely bring legal action in neighbor-to-neighbor disputes, even if the dispute involves a violation of the CC&Rs. But does this mean that the association should not get involved at all? Probably not.

Blog post by David Swedelson, Senior Partner at SwedelsonGottlieb, Condo lawyer and HOA attorney

An interesting article on condos and FHA-backed financing is making the rounds on the Internet. Originally published in the Chicago Tribune Buying and appearing in the February 13th edition of the LA Times, the article (follow this link) states that buying a condominium is getting trickier for anyone who wants to put down only 3.5 percent and have the government insure their mortgage.

The article suggests that the issue isn’t just the borrower’s financial wherewithal; “It’s the building’s, and plenty of condos no longer get a thumbs-up from the Federal Housing Administration.”

As the article points out (and as you have likely heard), since Feb. 1, 2010, condo buyers haven’t been able to secure unit-by-unit “spot” approval for FHA-backed mortgages if an entire association was not certified. Instead, the federal government set criteria to determine the financial viability of an entire building before deeming the project as FHA-approved, even if it had previously been certified. An approval lasts two years.
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SwedelsonGottlieb Senior Partner David Swedelson will be a speaker at the Orange County Chapter of Community Associations Institute’s (CAI) February 14, 2012 educational program “Dealing With Nuisances.” For more information about this program and to sign up, follow this link.

· Learn what a nuisance is and the types of common nuisances.

· Understand issues that need to be taken into consideration with respect to nuisance violations involving smoking, hoarding, hard surface flooring, pets and parking.

SwedelsonGottlieb Senior Partner Sandra Gottlieb was recently honored by the Orange County Chapter of Community Associations Institute as its 2011 Speaker of the Year. Sandra, along with Debra Warren of Cinnabar Consulting and Farrah Esquer of Cardinal Property Management, received this prestigious award as a result of their January 2011 presentation entitled “Keeping it Professional in a Social Setting.”

Sandra is a regular speaker at CAI-OC seminars and events, as well as seminars held by other chapters of CAI throughout California and nationally. Her next CAI speaking engagement will be on February 17, 2012 with the Channel Islands Chapter, “A Managers’ Townhall: Trending Topics in 2012”. You can also see her at the California Association of Community Managers’ Southern California Law Seminar on February 10, 2012, where she will be a co-speaker on “Stories from the Trenches: 12 Lessons in Community Manager Liability”.