HOA Law Blog

August 27, 2015

New FHA/VA Disclosures Required in California Condo Annual Budget Reports

By Sandra L. Gottlieb, Esq., Senior Partner and Mark Petrie, Marketing Coordinator at SwedelsonGottlieb

On August 12, 2015, Governor Brown signed AB 596, which adds the following two new required disclosures to the Annual Budget Report for California condominium associations (this does not include planned developments or other common interest developments).

(10) When the common interest development is a condominium project, a statement describing the status of the common interest development as a Federal Housing Administration (FHA)-approved condominium project pursuant to FHA guidelines, including whether the common interest development is an FHA-approved condominium project. The statement shall be in at least 10-point font on a separate piece of paper and in the following form:

“Certification by the Federal Housing Administration may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest.

This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the Federal Housing Administration.”

(11) When the common interest development is a condominium project, a statement describing the status of the common interest development as a federal Department of Veterans Affairs (VA)-approved condominium project pursuant to VA guidelines, including whether the common interest development is a VA-approved condominium project. The statement shall be in at least 10-point font on a separate piece of paper and in the following form:

“Certification by the federal Department of Veterans Affairs may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest.

This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the federal Department of Veterans Affairs.”
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August 20, 2015

Good Fences and Bad Neighbors Impacting Your Homeowners Association

by David C. Swedelson

By David Swedelson, Partner at SwedelsonGottlieb, California Community Association Attorneys

Your community association prides itself on how beautiful and well maintained the common area is. But the owner of the neighboring apartment/condominium/home/property is from Planet “Who Cares”. The fence that borders your property is an eyesore, and the neighboring property owner refuses to talk to the board or management about the situation. Is there anything you can do? This situation is more common than you might think, and the answer is yes!

On January 1, 2014, the California Legislature updated Section 841 of the California Civil Code regarding “good neighbor” fences, a common fence dividing two properties. The original law, in place since the 1870s, simply provided that both owners were mutually responsible for common fences. As a practical matter, if your neighbor paid to put up a fence, you were obligated to reimburse your neighbor for one-half of the “reasonable cost” of that fence. If you paid to put up the fence, your neighbor had to reimburse you. As for how to agree on the cost of the fence and how to collect your half, the law was silent. You were on your own.

The good news is that the new law does address these issues, and with more specificity. The 2014 law, like the 1870s law, operates on the presumption that neighbors benefit equally from a common fence, and that the cost for building or fixing a common fence should be shared equally even if the fence is on the neighbor’s property. But the 2014 law doesn’t stop there. It goes into detail, outlining a step-by-step process for erecting or repairing a common fence, and explains exactly how to recover half of the cost. The law also lays out exceptions to the equal-benefit, equal-cost assumption.
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August 19, 2015

New Requirements for Pools at Your Common Interest Development

by David C. Swedelson

Yes, it’s true, California now requires associations with 25 or more separate interests that have a “public pool” must follow new (2015) daily and monthly testing requirements for the pool water. (Associations with less than 25 separate interests still have to test at least two times per week and at intervals no greater than four days apart.) There are no exceptions for homeowners associations; rather, the statute includes homeowners associations in the definition of “public pools”. Although associations of all sizes should ensure compliance with the entirety of the Pool Maintenance and Operation requirements of the California Code of Regulations, the big ticket obligations are as follows:

1. New parameters for water characteristics 2. Strict monitoring of public pool facilities (daily if 25 or more separate interests) and requirements for written records 3. Enforcement of specific safety and first aid equipment 4. Requirements that newly constructed public pool enclosures have at least one keyless exit and self-closing latches 5. Imposition of health restrictions for employees or pool users.

As mentioned above, associations with 25 or more separate interests are now obligated, on a daily basis, to test pool and spa/jacuzzi water and to keep a log of the testing daily. Testing can be done automatically if local enforcing authorities allow for same; otherwise, the manual test results must be maintained onsite as part of the association’s written records for at least a two-year period.

August 7, 2015

Turn That Thing Off! Why You Should Not Allow Recording of Association Meetings

by David C. Swedelson

By Sandra L. Gottlieb, Partner at SwedelsonGottlieb, California Community Association Attorneys

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A regular question posed by the board members of our community association clients is, “Can or should Board meetings and/or meetings of members be recorded by audiotape or videotape?” While some members may advocate taping meetings in order to promote transparency, taping of association Board meetings and meetings of members is illegal, unless each and every attendee, including the Board members, approves of the recording, in advance. Regardless, it is our opinion that the Board should not allow taping of any association meetings.

California Penal Code, Section 632, states that it is a crime to record a conversation that would be expected to be confined to the parties present without the consent of those present. This statute makes exceptions to public gatherings that one would expect to be overheard, including any legislative, judicial or executive proceedings open to the public. But homeowners associations, unlike many other quasi-governmental agencies, are not required to have meetings open to the public. In fact, meetings are generally open only to members of the association. Thus, the statute supports the argument that there is an expectation of privacy among those in attendance at those meetings. Although minutes of meetings are to be made available, upon request, to homeowners within thirty (30) days after a meeting of the Board, thereby leading some to believe that the discussions are also intended to be made available to those attending the meeting, that is not the case. Minutes are only supposed to include brief descriptions of items of business, motions and resolutions, not discussion. Therefore, a recording of any meeting would include discussions, as well as back and forth banter and comments, not just resolutions. Further, free speech is inhibited if people know that their every word would be on the record. If a member insists on recording after being told to stop such recording so that the Board can conduct the business of the association, the Board should adjourn the meeting.

July 30, 2015

Senior Partner Sandra Gottlieb Will Present at Three CAI Events this August Throughout Southern California!

by David C. Swedelson

Don’t miss these essential educational opportunities for association directors and their managing agents. We want to ensure you stay informed about the latest state requirements and best practices for governing and managing your association.

Information on each event held by the Community Association Institute’s Greater Los Angeles Chapter, Channel Islands Chapter, and Orange County Regional Chapter follows below.

CAI-Greater Los Angeles Chapter The Ins and Outs of Board Elections

July 7, 2015

Compton Fire Department Ordered To Remove Defibrillators From Trucks, Ambulances And This Is Why Your Association Should Reconsider Maintaining A Defibrillator

by David C. Swedelson

Posted by David Swedelson, senior partner at SwedelsonGottlieb, Community Association Attorneys

The Los Angeles Times reports that “most fire trucks and ambulances run by the Compton Fire Department have been stripped of defibrillator machines, a crucial lifesaving device that rescuers use to deliver a shock and try to restart the heart of cardiac arrest victims.” “County regulators ordered the department to remove the devices last week after fire officials were unable to produce documentation showing Compton firefighters had been properly trained to use the equipment.”

To read the rest of the Times article, follow this link.

May 18, 2015

Warrantless Drug-Sniffing Dogs Can Enter Condominium Common Area — In North Dakota

by David C. Swedelson

If you live in a condo in North Dakota and are into illegal drugs, be advised that it is OK for the police to bring drug-sniffing dogs into your association’s common area without a warrant, according to the North Dakota Supreme Court (follow this link to read the full opinion).

As summarized by a newspaper article, the North Dakota Supreme Court made this the law in their posted opinion that rejected an appeal by a West Fargo man who “was arrested for possession of marijuana with intent to deliver after police brought Disco the dog into a common hallway that [he] shared with another resident in the condo. Police say they received a tip that pot was being sold out of the residence.” Although not made clear in the article, the dog alerted its handlers to the presence of drugs behind the condominium door, and the officers obtained a warrant before searching the condominium.

The trial judge denied a motion to exclude the evidence that argued that it was an unreasonable search and seizure. “The Fargo lawyer had argued that the hallway in the condo should be considered curtilage, or part of the home, and that gave Williams an expectation of privacy.” The ND Supreme Court stated in its 5-0 ruling that the common areas of a multi-family dwelling are not protected by the Constitution, and the search was legal, stating that “. . .we conclude the condominium building’s common hallway was not curtilage, and [the resident] had no expectation that the shared space would be free from any intrusion”.

April 17, 2015

HOA Approval Requirements For Solar Systems Have Changed; Is Your California Homeowners Association Complying With The New Law?

by David C. Swedelson

Regular readers of https://www.hoalawblog.com may recall our prior blog post regarding the new law impacting architectural applications for and installation of solar energy systems. Since then, SwedelsonGottlieb’s new Senior Associate Attorney, Brian Moreno, joined the firm, and he penned his own in-depth look at what the new law means for California homeowner associations. Brian’s article appeared in a recent issue of The Communicator, published by the Bay Area / Central California Chapter of Community Associations Institute. Follow this link to read/download Brian’s informative article.

April 15, 2015

SwedelsonGottlieb Assists HOA’s Successful Effort To Make Individual Buildings Become Smoke-Free

by David C. Swedelson

By David C. Swedelson, Esq. and Mark Petrie, Marketing Coordinator at SwedelsonGottlieb, Community Association Attorneys

Complaints about secondhand smoke are increasing, and many associations are looking for options for dealing with the issue. Many boards want to propose an amendment to the association’s governing documents but are concerned about enforcement, as they know that there are some smokers living at their associations.

If your development is made up of several detached buildings, each of which contain multiple units, you may want to consider an innovative alternative – amending the governing documents to allow the owners of each individual building to self-determine that their building will be smoke free! We did this for one of our clients, setting up a process by which the owners of a building can unanimously apply to the board for designation as a permanently smoke-free building.

April 13, 2015

The Davis-Stirling Common Interest Development Act Is Celebrating Its 30-Year Anniversary: Let’s Celebrate

by David C. Swedelson

The following is an excerpt from Community Association Institute’s California Legislative Action Committee’s article, the full text of which can be found here. SwedelsonGottlieb attorney Brian Moreno, Esq. authored the article.

Much has changed over the last 30 years. In 1985, the Dow Jones industrial average was at 1500. The Internet’s domain name system was created, and its first domain name was registered. The cost of a gallon of gas was 93 cents. Ronald Reagan was our President. The world was a different place. In 2015, the Dow Jones Industrial Average is now at about 18,000, there are hundreds of millions of active Internet domain names, and the cost of a gallon of gas is… well, that subject is complicated. More significant to the common interest development (“CID”) industry, the Davis-Stirling Common Interest Development Act, known as the Act, was born 30 years ago.

Remarkably, as signed into law by Governor George Deukmejianin on September 18, 1985, the original Davis-Stirling Act was only 25 pages long. It was a whole lot different than it is today. The original Davis-Stirling Act provided a framework that specifies the various rights and responsibilities of all parties involved with common interest developments. The original Act was amended and revised and added to over 50 times until it was completely redone and reorganized. The Act is now over 100 pages long. For the most part, those additional pages represent the countless hours of collaboration, analysis, research and work that our industry professionals have contributed to improving an already comprehensive and inclusive statutory scheme.