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

We have had to deal with our share of unauthorized playhouses in the past. And we have dealt with therapy pets in the past. But a therapy playhouse? Really!? As reported in Community Association Institute’s FastTracks email newsletter, a Lexington, Kentucky family’s legal battle with their homeowner’s association over the right to keep their disabled son’s “therapy playhouse” which was not approved by the association has “caused quite the stir, and is heating up as Kentucky’s legislature and a non-profit advocacy group get involved with the dispute.”

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Senior Partner David Swedelson will be a speaker on legal issues at the Los Angeles Chapter of Community Associations Institute’s upcoming HOA Board Member Orientation, Essentials of Community Association Leadership to be held this Saturday, January 21st. If you’re new to community association governance, this 8 hour Saturday orientation for association leaders is a must. This course will be given on Saturday, January 21st in Redondo Beach. For more information, follow this link.

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By Sandra L. Gottlieb, Esq., Senior Partner, SwedelsonGottlieb

On July 11, 2011, the City of Pasadena passed a “no-smoking” ordinance for multi-family homes, defined as two or more units, applicable to both those now existing and to be built, effective January 1, 2012. The ordinance provides that it will be unlawful to smoke in any common area (broadly defined in the statute to include all areas other than a unit), patio, balcony or inside a unit within any multi-family building, and yes, this applies to condominiums.

As of January 1, 2012, owners and/or their community managers must post “No Smoking” signs, in capital letters, not less than one inch in height, on a contrasting background or, as an alternative, the association may post the international “no smoking” symbol instead of the written words, in the common areas of the association’s building(s) at first floor entrances and exits, lobbies, restrooms and elevators. The international “no smoking” symbol consists of a picture of a burning cigarette enclosed in a red circle with a red bar across it:

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Prepared by the Community Association Attorneys at SwedelsonGottlieb

As they do almost every year, the California Legislature has yet again changed the Davis-Stirling Act (there have been approximately 50 amendments to the Act since its inception in 1985). We have summarized the most significant changes which impact how boards will hold meetings including executive session meetings, how boards communicate with one another, fees at escrow, electric charging stations, and rental restrictions. We will be preparing additional articles on these changes and posting them to https://www.hoalawblog.com. Follow this link for our summary of new legislation.

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By David C. Swedelson, Esq., Senior Partner, SwedelsonGottlieb

Here is the issue: A board adopts the annual budget and notifies the owners that assessments will increase from last year by 10%. After the beginning of the association’s fiscal year, and months later, the board realizes that expenses are greater than anticipated and wants to again increase the assessments, this time by another 10% (for a total of a 20% annual increase). Some attorneys, managers and board members believe that the board has this power; others (including this writer) disagree based on the language of the Civil Code, the intent of the legislature, and common sense. Owners are entitled to know at the beginning of the fiscal year what their association’s assessments will be. The board has a fiduciary obligation to determine what the assessments will be for that fiscal year and has a right to use the remedy provided in the Civil Code if expenses are greater than anticipated. Otherwise, the legislature would not have imposed a sanction for a board’s failure to timely distribute the new fiscal year’s budget, and a board could simply send out whatever they have and finalize the budget later.
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By David Swedelson, Senior Partner at SwedelsonGottlieb; Head of Firm Litigation Team; Condo Lawyer and HOA Attorney

As you have likely seen in the news, the “Great Recession” is still impacting us in ways we could not have imagined a year or two ago. Recently we have seen a number of news stories chronicling the plight of the state’s trial courts that are faced with unprecedented budget cuts, resulting in staff reductions and layoffs, and as a consequence long lines at the court house, stacks of unprocessed paperwork piling up in court clerks’ offices, and delays in getting hearing and trial dates. Justice will be delayed because there are just not enough staff persons at the courthouses to get the work done as quickly as we would like.

As reported in the Daily Journal, “Saying it had no other alternative for absorbing $350 million in budget cuts to the branch, the Judicial Council voted in July to slash trial court funding 6.8 percent. It remains to be seen how the next fiscal’s budget will shake out, but even courts that fared OK this year are bracing for the worst.”
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By Sandra L. Gottlieb, Esq., SwedelsonGottlieb Managing Partner; Community Association Legal Counsel

In 2002, the California Law Revision Commission (CLRC) was charged by then-Governor Gray Davis with clarifying ambiguities within the Davis-Stirling Act. (Civil Code Sections 1350-1378) to make it more “user-friendly” for homeowners and board members alike. After working fro many years with stakeholders, including a working group of attorneys, community managers and other industry professionals, the CLRC is behind the introduction of AB 805 (Torres), a two-year bill which must first be passed by both the Senate and Assembly and ultimately signed by the governor into law.

At this point, it is highly likely that AB 805 will make its way through both houses in 2012, with an effective date of either January 2013 or (the more likely date of) January 2014. Attorneys and managers alike will need continuing education to learn the new code provisions, sections and numbering.
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(a) The following provisions do not apply to a common interest development that is limited to industrial or commercial uses by zoning or by a declaration of covenants, conditions, and restrictions that has been recorded in the official records of each county in which the common interest development is located:

(1) Section 1356.

(2) Article 4 (commencing with Section 1357.100) of Chapter 2 of Title 6 of Part 4 of Division 2.

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(a) The owner of a separate interest, other than an owner subject to the requirements of Section 11018.6 of the Business and Professions Code, shall, as soon as practicable before transfer of title to the separate interest or execution of a real property sales contract therefor, as defined in Section 2985, provide the following to the prospective purchaser:

(1) A copy of the governing documents of the common interest development, including any operating rules, and including a copy of the association’s articles of incorporation, or, if not incorporated, a statement in writing from an authorized representative of the association that the association is not incorporated.

(2) If there is a restriction in the governing documents limiting the occupancy, residency, or use of a separate interest on the basis of age in a manner different from that provided in Section 51.3, a statement that the restriction is only enforceable to the extent permitted by Section 51.3 and a statement specifying the applicable provisions of Section 51.3.

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