Most homeowners at condo or HOAs follow their association’s rules. A few “bend the rules a bit.” And although they know that they “should be doing as” the rules require, they don’t.
They seem to believe that doing things the “wrong way may seem easier,”
“It doesn’t matter who you are, obey the rules and you’ll go far.”
By David Swedelson, Senior Partner at SwedelsonGottlieb, Community Association Attorneys
This was the title of a recent newspaper article. As Justin Bieber has been in the news too often lately and seems to be spiraling out of control, and as there is now a community association component to the story, I thought it only fitting that we address the community association issues raised by his recent activities.
The article (in the LA Times) reported about an alleged incident in late May and June of 2013 at the Calabasas planned development HOA where Bieber owns a home (one he apparently resides in). It is claimed that Bieber was involved in a high-speed chase on the association’s streets on Memorial Day 2013, as former NFL player Keyshawn Johnson – in his Toyota Prius hybrid – chased after Bieber – who was purportedly driving his white Ferrari, in an effort to catch “the Bieb” speeding in the HOA too close to Johnson’s kids. Johnson claims that Bieber drove to his home, jumped out of the Ferrari, and ran inside before Johnson could confront him. Bieber later claimed that security footage proved it wasn’t him behind the wheel.
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By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys
I recently read a newspaper article about Justin Bieber and the problems he is allegedly creating for his homeowners association in Calabasas, California. Homeowners are apparently unhappy that he is racing his Ferrari around the association’s streets, and they threatened to withhold payment of their assessments unless and until their board did something about the situation. That would be a mistake for those owners or any owner who has a dispute with their association, because they simply do not have the right to withhold payment of their assessments as leverage to get their association to do what they want.
Owners often make this threat. Usually, it is when they have suffered damage in their unit, or they want maintenance done and they think that the association has not responded as quickly or as well as they would like, or with the answers they want. These owners think they are tenants, and the association is their landlord, and that gives them the right to withhold the only income the association receives to pay for maintenance, utilities, insurance, management-and the list goes on. That belief is wrong and has gotten some owners into trouble.
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By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys
Does your community association have disabled parking spaces? Maybe I should ask if the association ever had these spaces. There is no police force that goes out and checks. But we know that over time, some boards have “converted” what were initially designated as handicap or disabled parking spaces into guest parking or assigned parking for management or other staff.
Some association clients tell us that their disabled parking spaces were never being used and that the association has a shortage of guest parking spaces. While that may be true, it is also true that associations must comply with the Fair Housing Amendments Act (FHAA, 1988). Not only does compliance make living in the community easier for members with disabilities, but it also helps the association avoid a time-consuming and costly lawsuit, because not all carriers provide coverage for fair housing violation claims arising out of an owner’s or tenant’s claim that the board and association have not reasonably accommodated their needs. Parking is one of the claims we often see when it comes to reasonable requests for accommodation by owners and/or their tenants.
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By David Swedelson, SwedelsonGottlieb, Community Association Attorneys
Is your condo association exclusively a commercial or industrial development? Surprise — as of January 1, 2014, the Davis-Stirling Act no longer applies to your association. Your association is now regulated by the new Commercial and Industrial Common Interest Development Act (CICIDA), Civil Code Sections 6500-6876.
Previously, managers and directors of commercial and industrial developments only had to be aware of the provisions of the Davis-Stirling Act that did not apply to commercial and industrial developments. Now, there is an entire new body of law specifically applicable to these kinds of developments. While some requirements remain unchanged, there are some substantive changes that will generally allow for more flexibility when governing a commercial or industrial development. Simply stated, the legislature has not included in the CICIDA many of the requirements of the Davis-Stirling Act that now apply solely to residential associations, including secret elections, budgets, disclosures, and the list goes on. Follow this link to read our comprehensive article.
By Sandra L. Gottlieb, Managing Partner at SwedelsonGottlieb, Community Association Attorneys
Wage & hour lawsuits are being filed with increasing regularity, and community associations, as employers, are not exempt. Unfortunately, some of our association clients have already been sued on wage and hour claims, and it appears that the risk of the association employer being sued for these claims is greater than ever.
What can you do to not be a target for litigation? Start by evaluating your association’s pay practices.
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By David Swedelson, Senior Partner at SwedelsonGottlieb, Community Association Attorneys
We know that most of you are likely overwhelmed with the new Davis-Stirling Act. But there was other new legislation that impacts many California community associations.
Minimum Wage
By Cyrus Koochek and David Swedelson, Community Association Attorneys, SwedelsonGottlieb
It is a fact of community association governance that at some point, every community association board of directors will likely have the need to levy a fine on a member. Most associations have adopted a schedule of monetary penalties or fine policy setting forth the fines that the board will impose in the event there is a violation of the governing documents. Whether an association plans to amend or adopt a new or revised fine policy, or do nothing at all with its current fine policy, all associations must now comply with changes in the new Davis-Stirling Act (effective January 1, 2014) relating to fines.
Former California Civil Code Section 1363(f) provided that if an association adopts or has adopted a policy imposing any monetary penalty, the Board must distribute the policy to all members via first class mail or personal delivery when the schedule is first adopted or when revised. The former code section was ambiguous and some believed that it did not require that the board disclose/distribute the fine policy on a yearly basis. The code just required that the board distribute any fine policy it did adopt/revise at that time. Thus, for example, if an association did not revise its fine policy for 10 years, some interpreted the former code section to say that there was no obligation to distribute it to the members regularly. This led to some confusion and disagreements.
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By David Swedelson and Cyrus Koochek, Community Association Attorneys at SwedelsonGottlieb
Many California condominium and homeowner associations’ CC&Rs permit the Board of Directors, on behalf of an association, to impose a reimbursement assessment/monetary charge on a member for the cost of repairing damage caused by a member (or the member’s guest or tenant) to association common areas and facilities. In addition to an association’s authority under the CC&Rs to impose a reimbursement assessment, former California Civil Code Section 1367.1(d) stated that “[a] monetary charge imposed by the association as a means of reimbursing the association for costs incurred by the association in the repair of damage to common areas and facilities…may become a lien against the member’s separate interest enforceable by the sale of the interest…”
Unlike other monetary charges that can be imposed on members, such as monetarily fining a member for a rule violation, reimbursement assessments may be enforced by recording a lien on a member’s property. And effective January 1, 2014, the new Davis-Stirling Act now expressly requires what we have been advising our clients for years, that Boards must hold a hearing before they can impose a fee or penalty on an owner for the cost of repairing damage to the common area.
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By David Swedelson and Cyrus Koochek, Community Association Attorneys at SwedelsonGottlieb
Since the old Davis-Stirling Act was made into law in 1985, there has been a small debate over whether an owner or their association is responsible for temporary relocation costs incurred when owners in a common interest development are required to vacate their units or homes for common area repairs. Former California Civil Code Section 1364(c) stated that the “costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.” On its own, this provision seems clear enough; however, because this language was found in the code section that also dealt with termite fumigation, and because it followed the provision dealing with termite fumigation, some owners were confused and debated the issue with their association’s board and management, claiming that unless the relocation was as a result of a treatment for termites, their association had to pay their relocation costs. They were confused and wrong.
Taking the location of this provision into context, it is easy to understand why confusion arose. Immediately preceding the temporary relocation costs provision was a subsection devoted to explaining whether the association or the individual owners are responsible for repairs and maintenance of areas subject to wood-destroying pests and organisms. This had led to some owners and others to question whether the temporary relocation costs provision was intended to apply only to wood-destroying pests and organisms, or for all circumstances resulting in temporary relocations. There really was no debate, as the section that dealt with temporary relocation was separate from the section dealing with wood destroying pests. But it was apparently confusing.
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