HOA Law Blog

August 7, 2012

Smoking Bans: An Increasingly Viable Alternative for California Condo and HOAs Seeking Ways To Address Complaints of Secondhand Smoke

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

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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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August 3, 2012

Time to Update your CC&R Cover Sheets!

by David C. Swedelson

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.

June 26, 2012

Go Ahead, Foreclose Already!

by David C. Swedelson

A firm client has three open delinquent assessment collection matters with our affiliate Association Lien Services. A new board of directors was elected, and despite the significant success that Association Lien Services has had collecting this condo association’s delinquent assessments in the past, the new board of directors was reluctant to proceed with foreclosure on these three files. They thought the association, by foreclosure, could become the owner of these properties if no one bids on them and then would not only become the landlord, but would also have an obligation to pay the bank on its loan, among other expenses of the property. They asked to meet with me.

I met with them, and we discussed their options. I have had many similar phone conferences and meetings over the last three years. This board agreed that with respect to each of the three homeowners, they did not think there was ever going to be a way to collect money from them as, among other things, they knew these owners were not working people.
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June 17, 2012

Judge Says Bank Can’t Use Facebook To Reach Defendant — Try Local Paper Instead

by David C. Swedelson

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

In the latest example of courts’ unease with social media, a federal judge has refused a request by a bank to serve legal papers on an a defendant via Facebook. Why is this important? Because it is getting increasingly difficult to find some defendants, and in lawsuits, the law requires that the defendant be served with the lawsuit (service of process) or in the case of a delinquent owner, that they be served with notice of a board’s intent to foreclose. Sometimes we just can’t find the defendant (or delinquent owner) and this makes it difficult for associations to collect damages that the owner owes the association, delinquent assessments, seek a restraining order if the owner or their tenants violations of the governing documents etc.
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June 12, 2012

Termites, Business Judgment Rule and Second Guessing Community Association Boards of Directors—Lamden v. La Jolla Shores Clubdominium Homeowners Association

by David C. Swedelson

Blog Article by David Swedelson, SwedelsonGottlieb Senior Partner, Condo Lawyer and Community Association Attorney
Resulting in one of the most important common interest development cases decided by the California Supreme Court, Mrs. Gertrude Lamden disagreed with her homeowners association’s board’s decision to address a termite problem by spot treating the affected areas rather than tenting and fumigating the entire building.

Upon learning of a termite problem in the association’s common area, the board carefully investigated and considered its options, taking into account the expense, inconvenience to members, likelihood of effectiveness, and a number of other factors, and decided to spot treat the affected areas. After that failed to eradicate the termites, Mrs. Lamden sued the association, requesting a court order requiring that the association fumigate her building.
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May 25, 2012

The Smoker Next Door: Secondhand Smoke + Condominiums = Trouble

by David C. Swedelson

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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May 20, 2012

FHA May Ease Rules on Condo Mortgages/Loans

by David C. Swedelson

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

We receive a lot of inquiries regarding FHA loans. Many condominium association boards have not sought or obtained approval from the FHA as a result of objections to the agency’s strict criteria. Many California condo associations have found that the requirements to difficult to comply with. Things could be changing. Recent news articles state that “the Federal Housing Administration is readying changes to its controversial condominium rules that have rendered large numbers of units ineligible for the agency’s low-down-payment insured mortgages.”

“The revisions could remove at least some of the obstacles that have dissuaded condominium homeowner association boards from seeking FHA approval or recertification of their buildings for FHA loans in the last 18 months. Under the agency’s regulations, individual condo units in a building cannot be sold to buyers using FHA-insured mortgages unless the property as a whole has been approved for financing.”

“FHA officials defend their requirements as prudent and necessary to avoid insurance fund losses but have expressed a willingness to reconsider some of the issues that have upset condo owners and the real estate industry.”
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April 26, 2012

AB 2273 Would Provide New Owner Info To California Community Associations

by David C. Swedelson

Blog post by David Swedelson

The California Legislative Action Committee reports that the Assembly Housing & Community Development Committee passed AB 2273 on a unanimous bipartisan vote of 7-0. This proposed legislation will require recordation of foreclosure sales within 30 days after sale. 

CLAC reports that the author of the bill, Assembly Member Bob Wieckowski, a bankruptcy attorney, “has a complete grasp of the multiple issues that this bill triggers, which greatly assists [California Community Associations] in dealing with the escalating opposition from the lending community, trustees, land-title companies, and others.”

April 23, 2012

Opting Out

by David C. Swedelson

By SwedelsonGottlieb Community Association Attorneys

We are often asked by California community association board members and managers as to the records members have the right to inspect and copy. One record request that can prove problematic is when a member requests a list of an association’s members. Under Civil Code Section 1365.2(a)(1)(I), an association’s member can request a membership list for the association, including the association’s members’ names, property addresses at the association’s development and mailing addresses (if different than the property address), if (1) the member requesting the membership list states the purpose for the request, (2) that purpose is reasonably related to the member’s interests as a member of the association and (3) the association reasonably believes that the information on the membership list will be used for the purpose stated.

If the association reasonably believes that the membership list will be used for a purpose other than the member’s stated purpose, the association can deny the request. However, if the requesting member brings an action against the association for that denial, the burden will be on the association to prove that the member would have allowed use of the information for purposes unrelated to the member’s interest as a member of the association (which may be difficult to prove). We suggest that any board considering such a denial consult with association legal counsel before denying the request.
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April 18, 2012

Americans with Disabilities Act Revised Swimming Pool Requirements; Do They Apply to Your Association?

by David C. Swedelson

By Sandra Gottlieb, Esq., HOA Attorney and Condo Lawyer

As discussed in a previous blog post, our firm has received many inquiries regarding the Americans with Disabilities Act (“ADA”) 2010 Revised Requirements as they relate to swimming pools, with a March 15, 2012 effective date. Do the ADA’s revised swimming pool requirements apply to your homeowners association? The good news is that nothing has changed from what was previously required and it is likely that these new requirements do not apply to most California community associations. We thought we would provide some additional details regarding these questions.

On September 15, 2010, under ADA Title III (“Title III”), The U.S. Department of Justice published revised, final regulations implementing the 2010 Standards for Accessible Design (“2010 Standards”) for public swimming pools applicable to “public accommodations” (see Title III, Sections 242 and 1009). Compliance with the 2010 Standards is permitted as of September 15, 2010, but was not required until March 15, 2012.

According to the ADA Title III Technical Assistance Manual (“ADA Manual”), in order to be considered a “public accommodation” with Title III obligations, an entity must be private, and it must own, lease to or operate “a place of public accommodation.” According to the ADA Manual, “a place of public accommodation” is a facility whose operations affect commerce and fall within at least one of 12 categories. Bottom line, if your association opens itself up to the public, it may be subject to ADA and thus these new regulations.
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