Reader Questions – The HOA Is Not Handling Our Common Area!

Reader Questions – The HOA Is Not Handling Our Common Area!

Dear Mr. Richardson: Our deck, which is the HOA’s responsibility, has been rotted and deemed dangerous to walk on for over two years. The association claims they are fixing the decks one by one as they get the money. We are finding it hard to rent the unit because of the unavailability of the deck. Does the association have to levy a special assessment, or do we just have to wait? Thank you, C.B., Dana Point Dear C.B.: The obligation to maintain common area normally arises from the CC&Rs and Civil Code 4775. The statute does not allow for a financial hardship exception. Associations should pursue common area repairs with reasonable diligence, and that sometimes can require a special assessment or bank loan. Under Civil Code 5551, new in 2020, HOAs are required to inspect a sampling of “exterior elevated elements” every nine years, with the first inspection completed by 2025. The statute also does not contain a financial hardship excuse. A safe building is a paramount concern. If someone is hurt by a known unsafe condition, it may not be a sufficiently strong defense to say “but we didn’t have the money for repairs.” Hoping things improve, Kelly Dear Kelly – Question: When I moved into my home during many years ago, the CC&Rs stated that if a neighbor’s trees were growing above the roofline we should send a letter to our association and they in turn would send a letter to the offending homeowner requesting the trees be trimmed. I sent a letter to my association asking that they notify my neighbor as to the trees that...
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...
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...
CC&Rs or Rules, and a Forgotten Bylaw Amendment

CC&Rs or Rules, and a Forgotten Bylaw Amendment

Hi Kelly, I’m confused between “rules” and “CC&R’s.” Our board, over the years, has implemented new rules. What I don’t understand is: How is this different than making changes to the CC&R’s, which would require homeowner approval? For example, the board passed a rule that prohibited playing sports in the street. When I bought my house, there was no such prohibition. Now, after my kids started playing sports in the streets, they prohibit it. I didn’t get to vote on this, and had it been in the CC&R’s when I was contemplating my purchase, I would not have bought in this neighborhood because they obviously were not “children friendly.” Do I have any recourse? Can the board just implement new rules whenever they want? Thanks for your insight. R.D., Vista Dear R.D., Rules are called various things by HOAs, including “house rules” or “regulations,” but the Davis-Stirling Act calls them “operating rules.” Per Civil Code 4340, an “operating rule” is “a regulation adopted by the board that applies generally to the management and operation of the common interest development or the conduct of the business and affairs of the association.” If homeowners voted to approve it, it would not be an operating rule. Rules are meant to be somewhat fluid, allowing boards to adapt them to the community’s changing needs and desires. CC&R’s are more permanent since a membership vote is normally required to amend them, and are recorded as equitable servitudes binding all property owners subject to the CC&R’s. If the homeowners largely object to a rule change, Civil Code 4365 authorizes a petition for a membership vote...
Rules Regarding Children, and Blocked Driveways

Rules Regarding Children, and Blocked Driveways

Dear Mr. Richardson: Can an HOA come up with new house rules that ban children from playing outside the units? Especially with many young children that live here. G.G., Lawndale Dear G.G., Under the California Fair Employment and Housing Act (Government Code 12900-12996), “familial status” is protected against discrimination by Government Code 12955(a). This means one cannot discriminate against residents with children. Rules targeting the activities of children are illegal discrimination, even if they are well-intentioned and appear to be based upon safety reasons. If due to safety concerns an association wishes to curtail recreational activities in common areas, an operating rule should not mention the age of the person doing so, but instead should simply focus on the activity. For example, would skateboarding by legendary skater Tony Hawk be OK in the common areas? What about Lionel Messi playing soccer in the parking lot or drive aisles? If not, then simply ban skateboarding and soccer and avoid mentioning the age of the participants. California law specifically allows senior communities to discriminate based upon familial status, by exempting them from Government Code 12955. Section 12955.9 specifically excludes “housing for older persons” from the ban on familial status discrimination. Associations should be careful in drafting rules to avoid discrimination. Not only does the Department of Fair Employment and Housing pursue violations, but private housing rights organizations and aggrieved residents all can pursue lawsuits as well. Thanks, Kelly. Dear Kelly, I am disabled and cannot walk easily, properly, or safely when there are obstacles in my way. It is very easy to trip and fall. My HOA has been allowing large numbers of...
We Can’t Seem to Get Copies

We Can’t Seem to Get Copies

Dear Kelly, Do I, as a homeowner, have a right to see the contract between the HOA and a vendor? I have no desire to stir up problems. I appreciate your weekly column in the paper, I wish all my neighbors would read it and understand what the board goes through on our behalf. Thank you, M.L, Dana Point Dear M.L., Yes, you have the right under Civil Code 5200(a)(4) to see executed contracts. You must make the request in writing, which should be a paper document unless your HOA accepts notices vie email. Under Civil Code 5210, that copy must be provided to you within ten business days of the request. The association may require you to reimburse the reasonable copy cost of the document. Make sure you request a specific document – a request that asks the HOA to go hunt for “any maintenance-related contracts” is not asking for a specific document but asks the HOA to research for you, and the HOA is not required to do that. Hoping this is helpful,Kelly Kelly, Does the HOA manager or board have the responsibility to provide me with a copy of the minutes (signed/unsigned) and an update of the financial status from the previous meeting? I attended our meeting the other day and requested that members be provided a copy of the latest financial status and expenditures and copies of the previous meeting minutes, that way we can follow the agenda of the meeting. I was informed that I am provided a copy of the financial status at the end of the year and the budget for the year....
Shaken Up About Earthquake Insurance

Shaken Up About Earthquake Insurance

Hi Kelly, I live in a 100+ unit condo complex without HOA earthquake insurance. I have CEA earthquake insurance for my home. Have you written any articles I could read on how to cover myself if my building suffers structural damage? Thank you, R.M., San Diego Mr. Richardson, Is a planned development HOA required to maintain earthquake coverage insurance? Our association is considering dropping this coverage in order to save money. B.W., Huntington Beach Kelly, My daughter recently purchased a condominium. The financial reserves of the HOA seemed strong, good property management, no obvious area of neglect. However, the HOA does not carry earthquake insurance and on its website suggests you get your own. I can’t find an insurance company that will issue earthquake insurance for just one unit particularly since the fire and general casualty insurance is with the HOA. Any suggestions? L.M., Fountain Valley Dear Mr. Richardson, Our condominium HOA board decided to make common area upgrades rather than obtain earthquake insurance. They feel it is too expensive. I think this is foolish, if not negligent, as it puts the equity of all owners at risk. Do you feel obtaining earthquake insurance is an obligation of the board? Thank you, J.H., Laguna Hills Dear R.M., B.W., L.M. and J.H., Most HOA and residential insurance policies contain an exclusion for damage resulting from earth movement. Owners can purchase an amendment to that insurance, commonly called “earthquake insurance,” in which the insurer agrees to pay for a certain amount of earthquake damage. Many LA County HOAs learned in 1994 after the Northridge Quake how helpful it can be to have earthquake...