H.U.D. Issues Practical Guidance On Assistance Animals

H.U.D. Issues Practical Guidance On Assistance Animals

Assistance animals are very important to certain disabled individuals. Under the federal Fair Housing Act (42 United States Code 3601 and following), and California Fair Housing Regulation section 12005(d) such animals are not pets, and housing providers (including HOAs) must make reasonable accommodations to permit such animals. However, the lack of guidelines and definitions regarding assistance animals has hampered the ability of deserving disabled persons while at the same time permitting broad abuse by persons not needing such assistance. Until recently, the only guidance available from the United States Department of Housing and Urban Development (H.U.D.), was a 2004 guide issued jointly with the US Department of Justice along with a letter H.U.D. published in 2013. However, on January 28, 2020 HUD issued important new guidance regarding the making, or receipt, of assistance animal requests. The 19 page document, called “Assistance Animal Notice FHEO 2020-1” is available at www.hud.gov or www.hoahomefront, and includes helpful guidance regarding how housing providers should respond to requests for assistance animals. The H.U.D. Notice is written in plain English, provides an 8-step process for responding to assistance animal requests, and includes many helpful tips on each step in the process. As with California’s Fair Housing Regulation 12185(c)(2), the H.U.D. notice requires an individual assessment of the person seeking an assistance animal and rejects websites which generate automatic “certificates” of need for assistance. The H.U.D. Notice differs in some important respects from California’s Fair Housing Regulations, since H.U.D. is addressing federal law, while California’s regulations were promulgated by the State Fair Employment and Housing Council. For example, the H.U.D. notice states that “health care professionals”...
Reader Questions – Is HOA Making Solar Installations Too Difficult?

Reader Questions – Is HOA Making Solar Installations Too Difficult?

Hi Kelly, Good morning. My HOA is requiring me to install “critter guards” as part of my solar installation, but this will cost me over $1,000. Can the HOA force me to undergo this expense? Your valuable advice is highly appreciated. Thank you very much for your help. With Best Regards, C.J., San Jose Dear C.J.: Civil Code sections 714, 714.1, and 4746 establish a strong legal preference for solar energy installations in California HOAs. Although a restriction which is “reasonable” is allowed, a restriction which either adds $1,000 or 10% to the cost (whichever is less) is not reasonable and is specifically not allowed. If there is no reasonable way to meet the “critter guard” requirement without a cost of over $1,000, you may want to bring that information to your board, along with a copy of the statute, (and perhaps this column also). Associations that make the wrong choice on this subject are exposed to not only damages and attorney fees, but also a civil penalty. However, don’t rush to court – show your board this information and help to educate them. Most HOA disputes begin with a disparity of information, followed quickly by assumptions of ill will by each side. This is something that should be quickly worked out as neighbors, once everybody has the same information. Thanks for your question. Sincerely, Kelly Dear Mr. Richardson: The problem with Civil Code 714.1 and its permission of “reasonable standards” for installation of solar panels is that many HOAs are proposing egregious indemnification agreements that go far beyond the maintenance and repair requirements such a system might develop....
Reader Questions – Can They Take Away My Sunshine (Energy) Away?

Reader Questions – Can They Take Away My Sunshine (Energy) Away?

Hi Kelly, I read your column about HOA’s regularly, and I enjoy it. Can a HOA prevent us from placing solar panels on the roof of our condominium townhome? If we agree to be responsible for the repairs needed due to our solar panels, do we have the right to place solar panels on our roof? M.F., Carmel Valley Dear Mr. Richardson: Can my HOA deny me from installing solar panels on my roof? M.H., Rancho Santa Fe Dear Kelly: I was told we could not install solar because it would void our roof warranties. Can our management company ban installation of solar because of that reason? D.D., Cypress Dear M.F., M.H., and D.D.: So long as you comply with reasonable restrictions (those are stated in Civil Code 714.1 and 4746), no, the HOA cannot arbitrarily deny homeowners seeking to install solar energy systems. As per Civil Code 714(b), the policy of the state is “to promote and encourage the use of solar energy systems and to remove obstacles thereto.” Civil Code 714 proceeds to implement that policy by protecting solar systems and making it illegal for HOAs to ban them. Under this statute, “effectively” prohibiting or restricting solar systems is illegal. Reasonable restrictions are allowed, and those are defined as something which does not increase the cost by $1,000 or 10% (whichever is less) or does not reduce the efficiency by more than 10%. HOAs which willfully violate this law could be liable for damages, a $1,000 civil penalty, and attorney fees. Hoping this helps to shed some light, Kelly Dear Mr. Richardson, I submitted a formal application...
Reader Questions – The Open Meeting Act

Reader Questions – The Open Meeting Act

Kelly, how much notice is required regarding place and time for monthly board meetings? Thanks, C.B., Redondo Beach. Dear C.B.: Under Civil Code 4920(a), four days’ notice must be provided before board meetings, unless the meeting is solely in closed executive session (in which case 2 days’ notice is required by Civil 4920(b)(2)). If the meeting qualifies as an emergency board meeting under Civil 4923, no advance notice need be announced. Sincerely, Kelly Dear Mr. Richardson: Our HOA has a rule that only homeowners listed on the title can attend a board meeting as meetings are not open to the public. My husband and I recently married, and he is not listed as an owner since it is only in my name. He would like to attend the meetings. Can they legally keep him from attending? M.W., Irvine Mr. Richardson: When we have an HOA meeting it is always announced that “If anyone here is not an owner, please leave the room” Since these are ‘open meetings’ I was wondering if this is in accordance with Davis-Stirling. H.D., Cathedral City Dear M.W. and H.D.: The Open Meeting Act only gives association members the right to attend open meetings of the association board. Civil 4925 states “Any member may attend board meetings…” So, tenants, family members of owners or owner representatives do not have the right to attend. The SB Liberty v. Isla Verde case, decided in 2013, involved owners who transferred their unit to their limited liability company and then sought to have their attorney attend board meetings on that company’s behalf. The court confirmed that the law only...
New Year’s Resolutions of HOA Service Providers

New Year’s Resolutions of HOA Service Providers

[This is the fourth and final installment of this series, which previously addressed directors, homeowners, and managers.] As the association’s service provider, I resolve to: NUMBER ONE:1. Follow the Golden Rule. [treating others how I want to be treated] PROPOSALS:2. Give the association the best proposal I can. If the association’s request for proposal omits important elements of the work, I will add those elements to my proposal and disclose the proposed extra cost now instead of charging it later as an “extra.” 3. Tell them if they really don’t need my services right now.4. Disclose the less expensive (and possibly less profitable) alternative they didn’t ask about.5. Explain my recommendations, and never tell them just to “trust me.” 6. Promise only what I know I can deliver.7. Not seek a contract of more than one year in length, unless the work cannot be completed in less than a year. KNOWLEDGE:8. Pursue professional designations and attend seminars to keep current.9. Take CAI’s Educated Business Partner course to ensure my understanding of the unique needs and characteristics of common interest communities. SERVICE:10. Promptly answer the board’s or manager’s questions.11. Explain my company’s charges, taking no offense.12. Take instruction only from the manager or from the person designated in the contract as my point of contact.13. Immediately alert management if a homeowner, even a committee chair or director, interferes with the work.14. Obtain written authorization if any work outside the contract becomes necessary and for which I have in writing quoted a price.15. Not attempt to perform work outside my expertise and immediately advise the association of the need for other...
New Year’s Resolutions of HOA Managers

New Year’s Resolutions of HOA Managers

[After two previous columns proposing resolutions for directors and HOA members, here are ideas for managers. Next week – service providers] As an association professional manager, I resolve to: NUMBER ONE:1. Follow the Golden Rule. ATTITUDE CHECK:2. Remember I am a professional, and will give the board the best advice I can. I am not employed to be silent. 3. Strive to give the board the answers it needs to hear, regardless if it is the answer the board hopes for.4. Avoid reacting defensively to upset homeowners, and will make sure they are informed as to the “whys,” and not only the “whats.” 5. Confirm in writing my advice to the board if it disregards my advice.6. Not attempt to give specialized advice, but will refer the board to the appropriate specialized professional service provider.7. Try my best to please all, while knowing that I can’t. BE KNOWLEDGEABLE:8. Pursue professional designations and attend seminars to keep me up to date.9. Be prepared at any board meeting to explain significant deviations from budget or unbudgeted expenses.10. Understand the Business Judgment Rule, and ensure the board has sufficient information to make each decision.11. Encourage the board members to join the Community Associations Institute, knowing educated boards are better boards. BETTER BOARD MEETINGS:12. Protect the board from overly long or disorganized meetings.13. Create agendas with consent calendars to quickly handle non-controversial items.14. Alert the board when an agenda is too ambitious.15. Become comfortable with the fundamentals of parliamentary procedure.16. Help the board stay on topic and on agenda. 17. Alert the board if it is handling matters in closed session which should...
New Year Resolutions for HOA Members

New Year Resolutions for HOA Members

[Second in a four-part series, with possible resolutions for the HOA owner.  Next week’s installment will suggest ideas for managers.] I, the HOA member, resolve to: NUMBER ONE: Follow the Golden Rule. (paraphrase: “Treat others as you would like to be treated”) MY ATTITUDE: Not refer to the HOA or board as “they,” since it is all “us.” The directors are also members who pay assessments and spend their time working to benefit us all. Be neighborly, because shared ownership fails without cooperation. Assume our directors are doing their best as volunteers, and give them the benefit of the doubt. Not first assume the board is incompetent or dishonest when I believe it is overspending. Avoid the “my home, my castle” attitude. We share the benefits of common interest ownership, which means we also agree to share control of our property. Ask questions before making statements, criticizing, or even accusing others. Acknowledge the board may have more information than me. This doesn’t mean the board is always right, but it does mean my opinion might not be fully informed. Take the long view of our association property, supporting growth of our capital reserve fund and maintaining our buildings. BE KNOWLEDGEABLE: Read the information the HOA sends to me. Be familiar with the CC&R’s, bylaws, and rules. I will be a better neighbor by understanding the use restrictions and rules. Read the association budget and reserve study. I will ask informed questions, particularly about deviations from budget. If I ask to review financial documents, I will not ask for “everything,” and request only documents which I really need, acknowledging my...
New Year Resolutions of HOA Directors

New Year Resolutions of HOA Directors

Many of us start the new year with commitments to improve, so why leave out the HOA? This four-part series suggests resolutions for association directors, homeowners, managers and service providers. As an HOA director, I resolve to: ALWAYS:1) Follow the Golden Rule. CHECK MY ATTITUDE:2) I don’t control my neighbors; I serve them. A servant’s attitude will help me be less defensive and stressed when neighbors challenge or criticize board decisions.3) Advocate our board follows the law and governing documents, spends money wisely, and preserves and maintains our community assets, while also attending to the board’s relationship with our members. We will balance legal, financial, property, and community considerations in our association governance.4) Remember that my position as a volunteer is different than my work. Unlike at work, we cannot fire our HOA neighbors.5) Be aware that not all neighbors know their rights and responsibilities under the law and governing documents, and I will be patient and willing to explain our rules and decisions. BE KNOWLEDGEABLE:6) Review our governing documents (CC&R’s, bylaws, and rules).7) Regularly review financial reports on budget, reserves, expenditures and delinquencies.8) Understand the Business Judgment Rule, and always ensure the board has sufficient basis for each decision.9) Encourage my board colleagues to join a Community Associations Institute Chapter, and take advantage of the written materials, seminars and classes CAI offers to volunteers. IMPROVE BOARD MEETINGS:10) Help to limit our open board meetings to at most 2 hours, with a goal of an average meeting length of 90 minutes. 11) Arrive at meetings prepared, having reviewed the agenda and board packet.12) Listen attentively during Open Forum without...
The HOA Holiday Wish List

The HOA Holiday Wish List

During the holiday season, we often struggle to find the perfect gift for those who are important to us. Sometimes we need a little help, and we ask for a “wish list” of gifts to guide us. What would wish lists from the key players in the HOA world look like? For the homeowner membership: Regular communications from the board. Organized and efficient board meetings. An attentive board during open forum. A board committed to follow the law and the governing documents, and to improve the sense of community within the association. Directors who govern with a sense of service, not control. Directors who are not defensive when homeowners bring new ideas or even criticism. A board which will tell the truth to members, even if it is a hard truth (such as the assessments are too low and should be increased). A realistic budget and an increased commitment to funding the HOA’s reserve fund. A written explanation of any significant changes from last year’s budget to the current proposed budget. Neighbors who do not automatically assume that annoyance from another neighbor is intentional. Civility. For the board of directors: Respectful homeowners who acknowledge that the board and committee members serve the community without compensation (and typically without appreciation). Volunteers for committees and board service. Homeowners who use open forum effectively. Homeowners who attend and listen without interfering with board deliberations. Homeowners willing to pay for the level of maintenance and service they desire. A manager who has attained or is actively pursuing the management profession credentials. A manager modeling the highest level of ethical behavior, avoiding conflicts of...
Who Is Watching The HOA?

Who Is Watching The HOA?

Mr. Richardson, Is there an oversight/audit department on a state level that oversees the management of an association? I am finding contradicting and wrong information in the minutes. Thank you, M.H, Laguna Woods   Kelly: Is there a governing body that oversees all HOA groups?  Ours is not enforcing its CC&Rs. What can we do besides sue them?  L.T., Rancho Bernardo Dear MH and LT: Some states, including Nevada, Colorado, and New Jersey, have agencies dealing with homeowner association problems, but statistically none of these three states are in the “top 10” in terms of total number of HOAs. California has about 50,000 HOAs, more than 2 ½ times the total of those three states combined, yet has no state agency enforcing any requirements for HOAs or their managers (Statistics Courtesy of Foundation for Community Association Research 2018 Factbook). The Department of Fair Employment and Housing will handle discrimination claims, but outside of that, California HOA owners with errant HOAs or managers have only one place to turn to – the courts. The Davis-Stirling Act has many provisions providing for a private right of action and an award of attorney fees to the successful homeowner. The door swings both ways on the issue of enforcement, as HOAs generally also rely on litigation to enforce their governing documents (hopefully only as a last resort), seeking attorney fees under Civil Code 5975(c). One may wonder why the state with the largest number of HOAs of any state other than Florida (also approximately 50,000) has no resource to correct errant HOAs other than the courts. The answer may well be in the...