Fair Housing Regulations Are Here, and a New Protected Class

Fair Housing Regulations Are Here, and a New Protected Class

After five years of work and hearings, the California Fair Employment and Housing Council has completed what appear to be the first state Fair Housing regulations in the country. While in the short space of this column a thorough summary of the regulations is impossible, here are some highlights for associations and their managers to consider. HOAs are “Housing Providers” under the regulations, as are HOA boards and their managers. Managers can also be subject to enforcement or civil liability if they discriminate or fail to respond appropriately to discrimination. The regulations do not cover all fair housing issues but provide helpful guidance regarding the housing provider’s obligation to make reasonable accommodations upon request of the disabled. The regulations describe how disabilities are documented and who can attest to the need for an accommodation. One such reasonable accommodation is allowing assistance animals. Under the regulations, a mere internet certificate or labeled vest is not acceptable to document the animal as an accommodation – a person attesting to a disability must be familiar with the resident’s needs. The regulations do not permit species or breed limitation for assistive animals. The test of “reasonableness” is whether the animal causes damage or danger to persons or property, and the mere fear or suspicion of problems is insufficient reason to deny the animal. A person needing an assistance animal cannot be required to obtain extra insurance or pay a fee or deposit for the assistance animal. The regulations also ban harassment based upon membership in a protected class, meaning a resident may not be harassed because of their race, gender, religion, familial status,...
Is the Handyman An Employee? AB5 May Increase HOA Payrolls in 2020

Is the Handyman An Employee? AB5 May Increase HOA Payrolls in 2020

Traditionally, many businesses often hire part-time or occasional workers and characterized them as “independent contractors.” The IRS and State Franchise Tax Board had guidelines to help determine who was an employee and who could fairly be called an independent contractor. There were many factors which played a role in that characterization. HOAs often hire persons they considered “independent contractors” to perform specific maintenance, repair, or other routine tasks. This avoided payroll tax withholding and other legal obligations. All that began to change in 2018 with a California Supreme Court case called Dynamex v. Superior Court, in which the traditional test of employment vs. independent contractor was replaced with a simple 3-part test, often called the “ABC” test. That ruling was incorporated in Assembly Bill (AB) 5, which was quickly signed by the Governor after passing the Legislature. AB 5 creates a new Labor Code Section 2750.3 and affects any hirer, including HOAs, using “independent contractors” which might be reclassified as “employees.” This new statute adopts the “ABC” test, which determines a worker as an independent contractor if: A) The hirer actually and contractually does not control or direct the person in the course of their work; B) The work performed is outside the hirer’s normal business; and C) The worker also normally and independently performs that work for others. If the hired person meets all of those three requirements, they can be treated as an independent contractor. As before, the element of control over how the person performs their work is key. Some HOA service providers are expressly exempted from the law, such as attorneys, architects, engineers, and accountants....
HOA Election Processes Much More Difficult in 2020 – SB323

HOA Election Processes Much More Difficult in 2020 – SB323

An extensive overhaul of HOA election procedures takes effect in 2020 after passage of the controversial SB 323. Here is a recap of the many changes: The law at Civil Code 5100(g) will finally allow votes by acclamation when, at the close of nominations, there are not more candidates than open seats. Unfortunately it only applies to HOAs of over 6,000 members. Associations will be required by a new Civil Code 5100(a)(2) to hold board elections at least every four years. This will affect few HOAs, since most have board terms which are one or two years in length. In the past, many HOAs have held hearings to suspend the voting rights of members delinquent in their assessments, and others have bylaws barring such homeowners from voting. The new Civil 5105(g)(1), however, requires HOAs to give ballots to all association members. So, delinquent members may vote on HOA matters, even though they are not paying their share of the HOA expenses. Although some HOAs allowed managers to serve as the Inspector of Election, under the new Civil Code 5110(b) this is prohibited. Some HOA Bylaws do not require directors to be an association member, but the new Civil 5105(b) disqualifies non-members from serving. The new Civil 5105(c) allows associations in bylaws or election rules to disqualify candidates if the member: Is delinquent in assessments (without a payment plan in place); Has not been a member for at least a year; Is co-owner with another director; or Has a felony conviction which would harm the HOA’s ability to obtain fidelity (dishonesty) insurance. The law does not specifically state that these...
Protection for ADUs and Doorway Icons Coming in 2020

Protection for ADUs and Doorway Icons Coming in 2020

Two new laws are coming in 2020, which provide protection for HOA owners in regard to accessory dwelling units and religious decorations on doorways. One of the most basic elements of residential CC&Rs is the requirement that residences are limited to “single-family” use. However, at least in California planned developments, that requirement is partially overridden through Assembly Bill 670. That bill, recently approved by the governor, creates a new Civil Code 4751 taking effect on Jan. 1, 2020. Under this law, a planned development lot owner can add a second smaller residence attached to the primary residence, so long as applicable building and zoning codes are satisfied. Accessory dwelling units have been increasing in priority with the state Legislature in recent years. In 2016 SB 1069 passed, creating a requirement that local building departments allow construction of ADU’s that meet minimal standards (Government Code Section 65852.2(e)). This year AB 670 passed, adding a new Civil Code Section 4751 to the Davis-Stirling Act. Starting in 2020, planned developments may not have an outright prohibition against ADUs, but may impose “reasonable” restrictions so long as they do not unreasonably increase the cost or effectively make ADU’s impossible. The law only applies to planned developments and does not apply to condominiums, stock cooperatives, or community apartments. Homeowners should check their CC&Rs before seeking an ADU on their property. Some detached home communities actually are not planned developments but are condominiums. Even if the condominium has a “yard,” it is not covered by this law. Planned developments often involve “townhouse” construction, in which homes are attached side by side but still are wholly...