HOA Law Blog

June 23, 2020

THE LAST ROUNDUP? Civil Code §4777(b) Mandates Strict Notice Requirements for Use of Pesticides/Herbicides

pesticides_-_Google_Search-300x268 From the Community Association Attorneys at SwedelsonGottlieb

When community associations decide to have chemical pesticides or weed-killing herbicides such as Roundup applied, they must provide detailed, written advance notice to homeowners and residents.

Pursuant to Civil Code §4777(b), “an association or its authorized agent that applies any pesticide to a separate interest or to the common area without a licensed pest control operator shall provide the owner and, if applicable, the tenant of an affected separate interest and, if making broadcast applications, or using total release foggers or aerosol sprays, the owner and, if applicable, the tenant in an adjacent separate interest that could reasonably be impacted by the pesticide use with written notice…”

June 16, 2020

Miami Condo Association Tells 86 Year Old Owner to Take Down His Black Lives Matter Signs; In California We Have Civil Code § 4710

by David C. Swedelson

Screenshot_6_16_20__11_21_AM-300x175 By David Swedelson, Community Association Attorney at SwedelsonGottlieb

Interesting story out of Florida About an 86-year-old owner who wanted to do something to show his support for the black lives matter movement. He wanted to stand in solidarity with those that are protesting to protect black lives, so, with the help of his granddaughter, he wrote out “Black Lives Matter” in chalk paint on the sliding glass door that leads to the balcony of his condo. His neighbors confronted him and also complained to management, and the association’s manager told him to remove the sign.

This owner was not deterred and he wanted to figure out a way to get what he felt was an important message across, so he and his granddaughter took the paint off the window and replaced it with cardboard cut-outs that spell out “BLM.” They hung the letters from the door on the inside of the condo using fishing wire — a display that could be considered interior art.

May 28, 2020

SwedelsonGottlieb’s List of all 58 Counties Current (as of 5-27-20) Orders Regarding Re-Opening Pools and Tennis Courts

by David C. Swedelson

Screenshot_5_28_20__3_30_PM-300x187 The COVID-19 pandemic resulted in the closures of community association pools, spas, tennis courts, gyms and other recreational facilties. The good news is that the State of California and the 58 counties are in the process of issuing new orders regarding the use of community association pools, tennis courts and other recreational facilities. The attorneys at SwedelsonGottlieb have researched all 58 counties and follow this link to our listing of same and their current orders regarding pools tennis courts and other facilities. Changes to the orders and guidance cited to in our listing occur frequently and this list is as of May 27, 2020. And as the different counties are progressing through the phased reopening plans at different paces, each association should check regularly with the State, County, and City for the most up-to-date orders and guidelines.

Contact SwedelsonGottlieb for questions: 800/372-2207 or info@sghoalaw.com

May 27, 2020

LA County Orders that Pools May Reopen as of May 26, 2020—But this Does Not Mean that an HOA Can Just Open the Gate to the Pool

by David C. Swedelson

weird_swimming_pools_-_Google_Search-300x147 From the attorneys at SwedelsonGottlieb, Community Association Attorneys

At the same time as the State announced that California has become the fourth state in the country to surpass 100,000 coronavirus infections and that 100,000 people have died in the United States from COVID-19, Los Angeles County issued a new order allowing for community association pools to reopen so long as certain protocols are followed. The new LA County Order does not mandate that associations open their pool(s). The association’s owners and residents will likely make a demand on the board to reopen the pool; what’s a board to do?

The first thing is to acknowledge that compliance with the new Order will not be easy. Some associations may opt not to open or not open until the association is able to administer the required protocols. These protocols are important. Let us not forget that LA County is still considered a coronavirus “hotspot” and that means that we must all do our part to stop the spread of the coronavirus. The news is filled with stories of people in California crowding certain recreation areas, pools, restaurants and beaches and not wearing masks and how these conditions have led to outbreaks in other states. Community association boards that decide to open pools, must follow the mandatory LA County protocols. In addition, they must make sure that residents comply.

Follow this link to read the new Order/protocol that the County issued for opening the pool(s). This protocol must be adhered to at all times and provides specific guidance/restrictions/limitations on reopening and use of the pools, including the deck area.

May 26, 2020

COVID-19 & Amenities – Q & A Webinar with Expert Panelists

by David C. Swedelson

SwedelsonGottlieb is sharing one of a series of webinars featuring founding partner Sandra L. Gottlieb and a panel of attorneys from across North America moderated by Andrew Fortin discussing how community associations are responding to and addressing issues about amenities arising from the Covid-19 pandemic.

As we continue to navigate the wave of this pandemic, we continue to urge you all to take COVID-19 and your health and wellness seriously. Be patient and thoughtful of your neighbors, community and those who are suffering the effects of COVID-19. And for those that are not infected, we all need to wear a mask and socially distance from others when out in public.

April 29, 2020

Moratorium on Foreclosure Actions? SwedelsonGottlieb Does Not Completely Agree

by David C. Swedelson

CAI_LOGO_225 Earlier this month, CAI released a Statement of Moratorium on Foreclosure Actions urging community associations to immediately suspend all foreclosure activity and not begin new foreclosure actions until June 1. We question how well thought out this position is as it is not all that realistic for California community associations.

Do not get this wrong. We at SwedelsonGottlieb are well aware of the impact that COVID-19 has had on our world and the fact that over 10,000,000 people filed for unemployment nationwide (so far). We recognize that community association boards are going to need to be sensitive to the fact that many owners may be temporarily (hopefully) unemployed and not able to timely pay their assessments.

As CAI said in its introduction to the Statement of Moratorium, the collection of community association assessments is a very serious and important responsibility of a governing board. Failing to collect assessments may impair a community association’s ability to pays its bills, provide essential services, acquire financing for continued operations, and may impact the ability of a potential purchaser to obtain a mortgage or impact existing owners refinancing of their loans.

April 21, 2020

Federal Government Does Not CARES: No PPP and Little Stimulus to Help HOAs During the COVID-19 Pandemic

by David C. Swedelson

Screenshot_4_21_20__10_26_AM-300x110 Prepared by the California Community Association Attorneys at SwedelsonGottlieb

By now, most people have heard about the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act (2020 H.R. 748). The breadth and scope of this Act, and the speed at which it passed both houses of a divided Congress and became law, is truly remarkable in these partisan times and speaks to the gravity of the COVID-19 crisis.

The Act is a massive stimulus bill that contains a variety of different programs of grants, loans, credits, debt forgiveness, and tax changes. Each of these programs is administered differently and has different criteria for eligibility.

Two of the Act’s provisions have become of particular interest to community associations: the federal Small Business Administration’s (SBA) new Emergency Economic Injury Disaster Loan Advance Grant program (the EIDL Loans which are available to HOAs), and the Paycheck Protection Program (the PPP which is not currently available to HOAs).

April 10, 2020

Coronavirus & Community Associations Webinar Featuring A Panel Including Sandra Gottlieb

by David C. Swedelson

SwedelsonGottlieb would like to share one of a series of webinars featuring Founding Partner, Sandra L. Gottlieb, and a panel of attorneys from across North America moderated by Andrew Fortin, as they discuss how community associations are responding to and addressing issues arising from the Covid-19 pandemic.

As we continue to navigate the wave of this pandemic, we continue to urge you all to take COVID-19 and your health and wellness seriously, be patient and thoughtful of your neighbors, community and those who are suffering the effects of COVID-19.

April 9, 2020

Is Force Majeure In Your Association’s Future? By the Community Association Attorneys at SwedelsonGottlieb

by David C. Swedelson

COVID-19__Force_Majeure_Event____Shearman___Sterling-300x131 The spread of the coronavirus/COVID-19 has caused and will likely continue to cause unexpected interruption in the business of many California community associations. Many of our association clients are in the middle of large common area refurbishment and restoration projects. With increasing restrictions and/or recommendations by public officials and others intended to control the spread of the coronavirus, contractors/vendors may suspend or cease services/work and advance “force majeure” as a defense to the association’s breach of contract claim. It is important that board members and managers understand what force majeure means and how to respond when a contractor/vendor suspends or seeks to suspend their performance due to the coronavirus citing a force majeure clause contained in the contract between the association and the contractor or vendor. Follow this link to read SwedelsonGottlieb’s article that explains exactly what force majeure means and how it could impact your community association. And if you have Force Majeure issues or questions, contact SwedelsonGottlieb via email (info@sghoalaw.com) or call us: 800/372-2207

April 7, 2020

COVID-19 and the Payment of Assessments By David Swedelson, Community Association attorney at SwedelsonGottlieb

by David C. Swedelson

Screenshot_4_7_20__12_32_PM-1-300x116 Recently, an attorney that also represents California community associations sent out a newsletter that dealt with assessment collection during the pandemic. We already addressed this issue in our COVID-19 HOA Guidebook. We certainly do not agree with a lot of what that other attorney had to say on this issue and we know that most other community association attorneys that we have spoken with feel the same way. And we preface our comments by saying that we are certainly sympathetic to all those association owners who have been laid off or furloughed as a result of the COVID-19 pandemic. But we are also pragmatic and realistic about how the non-payment of assessments will negatively impact the hundreds of California community associations we represent.

The newsletter from the other attorney suggested that when addressing unpaid assessments as a result of the pandemic (which may not be that easy for boards to determine), association boards need to balance board duties. That newsletter correctly stated that boards have a fiduciary duty to keep their associations’ operational, meaning that they have to pay the utility bills, pay for insurance, for maintenance of the common area, the cost of dealing emergencies, pay vendors, etc. Our colleague suggested that boards need to balance these obligations against the fact that increasing numbers of members cannot pay their assessments because of the pandemic. The newsletter, however, offered no suggestions on how to do this as there is no way to effectively balance the obligations as associations need the money assessed to pay the association’s bills. Yes, boards can delay any discretionary projects, but most associations do not have significant discretionary projects.

As stated in the introduction, don’t misunderstand our pragmatic approach as suggesting that we are not sympathetic to those owners that have lost their jobs and cannot afford to pay their assessments; of course we are sympathetic. That said, those owners will need to find a way to pay their assessments or at the very least contact their associations to request a payment plan so that their associations can manage their expectation of payments and can continue to operate and meet its obligations.