HOA Law Blog

March 14, 2012

Suspension of Voting Rights, Qualifications For Serving On The Board and Related Issues

By David Swedelson, Condo Lawyer and HOA Attorney

For many associations who are preparing to hold their annual elections, boards and managers are trying to determine who is actually eligible to be a candidate for the board and who can vote. This is a big issue these days as there are so many delinquent owners. Boards and managers are questioning why an owner who is not paying their assessments or is in violation of the CC&Rs or rules should be able to serve on the board. The fact is that for many California community associations, the bylaws and other governing documents may not set out any qualifications for serving on the board. This means that even a tenant or other non-owner can serve on the board.

Follow this link for a PDF of David’s full article on this subject.

March 8, 2012

Governor Brown Signs SB 880 Dealing With Electric Vehicle Charging Stations

by David C. Swedelson

By the condo lawyers and HOA attorneys at SwedelsonGottlieb

As reported by the Community Association Institute’s California Legislative Action Committee (CLAC), “Senate Bill 880 leapfrogged ahead of hundreds of other bills and was signed into law on February 29, 2012. Since this bill was passed as an Urgency Bill, it goes into effect immediately.”

As you may remember, in late 2011 the California Legislature pushed SB 209 through despite several flaws, and when Governor Brown signed SB 209, he admitted the bill had a number of serious flaws, such as allowing the taking of association common areas for a homeowner’s private use in violation of California’s Constitution and the Davis-Stirling Act (which generally requires approval of 67% of an association’s membership before an owner can exclusively use common areas).

February 27, 2012

The Condo Board, The Lawsuit And The $40,000 Parrot

by David C. Swedelson

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.

February 21, 2012

Nuisance Provision In HOA’s CC&Rs Allowed For Attorney’s Fees and Costs Award of $600,000+; Allocation Not Necessary Where Same Facts And Evidence Involved On All Claims

by David C. Swedelson

Blog post by David Swedelson, SwedelsonGottlieb Partner, Condo Lawyer and HOA Attorney

Think the court will not award significant attorney’s fees in a breach of CC&Rs case? In Klein v. Nyamathi (Bell Canyon HOA), a recent (unpublished) Court of Appeals Decision, the Nyamathis were found liable to their neighbors at a planned development located in the Bell Canyon area of Southern California for almost $400,000 for improperly grading their property and, as a result, flooding the Kleins’ property under nuisance and breach of contract/CC&Rs theories. The Kleins also sued their HOA, claiming that the board had failed to enforce the CC&Rs as to their neighbors; the HOA settled before trial.

The trial court also awarded the Kleins attorney’s fees of $552,655.75 and costs of $63,595.83, over $600,000. The Nyamathis appealed, contending that while the Kleins may be entitled to their attorney’s fees for the breach of the CC&Rs claims, they were not entitled to all of the fees, as some of the claims were not covered by the CC&Rs. They argued that the fees must be apportioned. The Court of Appeal did not agree.

February 18, 2012

Lead Paint On Your Common Area Walls?

by David C. Swedelson

Blog posting by David Swedelson, Partner SwedelsonGottlieb; Condo Lawyer and HOA Attorney

As of April 22, 2010, the new Environmental Protection Agency lead paint requirements for most dwelling units and common areas within homeowners associations which were built before 1978 became effective and may impact many California Community Associations.

Under the EPA’s Lead Based Paint Renovation, Repair and Painting Program Rule, firms who are paid to perform work which “disturbs” paint in non-exempt pre-1978 residential housing and multi-family structures (condominiums, stock cooperatives) must be EPA certified, and all individuals who are actually performing the work must either be certified renovators or must have been trained by a certified renovator. Additionally, all renovations must be performed according to EPA lead-safe standards and practices. (Two additional provisions of the law are already in effect – EPA specified notification requirements to owners and occupants, and EPA record keeping requirements.)

February 16, 2012

Neighbor-to-Neighbor Disputes: They Are Such a Nuisance

by David C. Swedelson

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.

February 15, 2012

Dealing With Nuisance Violations

by David C. Swedelson

View the slideshow presentation prepared by David Swedelson of SwedelsonGottlieb and Diana Wright of Action Property Management for a recent seminar held by the Community Associations Institute – Orange County Regional Chapter.

February 13, 2012

Condo Buyers Frustrated In Hunt For FHA Mortgages

by David C. Swedelson

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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February 9, 2012

David Swedelson Speaking About Dealing With Nuisances On February 14, 2012

by David C. Swedelson

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.

February 7, 2012

Yes, California Condominium And Homeowner Associations Can Have A Dog Removed

by David C. Swedelson

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

We are often asked by boards and managers whether a California condominium or planned development homeowners association (HOA) has the right to have a dog or another pet removed from the association because it violates the association’s governing documents. Sometimes, the violation has to do with the dog creating a nuisance, barking incessantly or creating other problems such as being too aggressive and threatening. Other times, the dog is too large and does not comply with the association’s governing documents, which may limit the size of the dog, or other pet for that matter, that can be maintained at the association. And sometimes, the CC&Rs may limit the number of pets an owner can maintain in their unit.

The answer is yes, an association can seek to have the pet removed if the resident’s pet is violating the association’s governing documents. And there is a good chance that an association would be able to have that pet removed. Such was the case in the San Vicente Villas Homeowners Association vs. Cohen lawsuit which we prosecuted all the way to the California Court of Appeal. We wrote an article some time ago following the Appellate Court’s decision in 2003 confirming the trial court’s decision that Ms. Cohen’s dog must be removed from the Association. Follow this link to our article, The $1000 Per Pound Dog.
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