Reader Questions – Termite Fumigation Part 2

Reader Questions – Termite Fumigation Part 2

Hi Kelly, our board is resolved to resume fumigation of the buildings in our community and has voted to obtain quotes for the next phase of fumigation but has not voted yet to schedule the work. The president does not consider that to move out of one’s home and into a hotel or another person’s home is a COVID risk. Does the board have the right to push through with the fumigation work and force people out of their homes during COVID times? What do you recommend happens? Thank you for your help, C.P., Huntington Beach Dear C.P.: If the association has confirmed a termite infestation in the framing, that can affect all of the HOA owners. Effective treatment can protect the building’s structural integrity, thereby protecting residents’ safety and protecting owners from long-term major repair costs. Civil Code Section 4785 allows the HOA to temporarily remove an occupant from a residence slated for termite treatment if the HOA meets certain specified conditions. The HOA must mail or personally deliver written notice to the owner with specific information at least 15 but not over 30 days before the date the residence must be vacated. If the HOA finds it necessary to invoke this statute, it should consult its legal counsel before beginning the removal of a resident, and the lawyer will most likely suggest a court order is obtained on an emergency basis. HOAs should not try to force residents out of their home without appropriate legal process being invoked, and residents should cooperate with this important preventative work. Best, Kelly  Dear Mr. Richardson: My building has confirmed termite...
Reader Questions – Who Handles Those Termites?

Reader Questions – Who Handles Those Termites?

Dear Kelly: I live in a townhouse. My neighbor had termites and my other neighbor on the other side suspects them as do I.  We were told by the association that it is our responsibility to take care of them.  It just seems to me that termites come from the outside in and should be the responsibility of the association.  Could you shed some light on this for me.  M.N., San Clemente Dear Mr. Richardson: Does the association have any responsibility to handle a termite problem originating from trestles (wood patio overhangs) that were originally installed by the builder and are part of the architectural design of the townhouses? Termites are entering the home due to infestation of dry rot and termites in these structures. R.M., Coto De Caza Dear M.N. and R.M.: Termite infestations in attached housing affect not only those living in affected buildings but potentially affect all assessment-paying members if the damage requires expensive repairs to common area framing. Allocation of responsibility is provided by Civil Code Section 4780(a) which states that in condominium, stock cooperative, or community apartment associations, the association is responsible for repair and maintenance of common area termite issues, unless the CC&Rs say otherwise.  You each describe your homes as “townhouses,” but that describes the homes’ architectural configuration, not the type of property ownership you have. A townhouse could be a planned development, condominium, stock cooperative or community apartment property. If the CC&Rs are silent and your association is a condominium (you own a “unit”), stock cooperative (you own a share of stock) or community apartment (you own an undivided equal fractional...
Reader Questions – Is THIS a Conflict of Interest?

Reader Questions – Is THIS a Conflict of Interest?

Hello Kelly! Is it considered a conflict of interest if a board member is also an HOA employee? Our board is voting on matters which would affect the job duties of the board member/employee. Would this be considered a conflict of interest? The director acts as property manager. Thank you! E.L., Simi Valley Dear E.L.: A homeowner who is also an employee, let alone the manager, is burdened with major conflicts of interest. Is the manager making their home a higher priority? Does the manager issue violation notices against their friends? Managing HOAs under the Davis-Stirling Act is complicated, particularly under the growing body of technical requirements. Don’t hire a neighbor; hire a professional manager. They cost more, and there are reasons for that – professional managers have training, experience, and resources behind them which more than offset the cost. Best regards, Kelly Mr. Richardson, how ethical is it for an active member of our HOA board to be dating one of the vendors presently working on our property? Other homeowners are aware of this situation and I have been elected to ask you if it is ethical.  We feel as though one or the other should step down from their position. Kind of a conflict of interest.  Maybe you have a better perspective on the situation and can share with me. C.C., San Diego Dear C.C.: A director’s personal relationship with a vendor creates a conflict of interests for that director. I am assuming that the director has the good judgment not to discuss that vendor openly (or privately) with any other directors, and to abstain from votes affecting that vendor. Otherwise, it could...
Some Bad Pending HOA Legislation

Some Bad Pending HOA Legislation

Last week’s column recapped five bills proposing to help HOAs. This week addresses the other side of the coin, as four legislative proposals are pending, which would not help California’s 50,000+ HOAs. AB 1410 (author Rodriguez)  This year’s worst HOA bill is Assembly Bill (AB) 1410, by Member Freddie Rodriguez. The bill states that it responds to the pandemic emergency, yet most of the bill is not temporary. The bill would eliminate any ban on leasing portions of residences. This means that HOAs could not stop someone from renting each bedroom to a different tenant or subdividing the residence into multiple rented parts. This would effectively destroy the longstanding rule that HOA homes must be single “family” residences and allow them to become mini boarding houses. AB1410 would also add a new Civil Code Section 4754, banning anything in governing documents restricting “critical discussion” of the HOA. That sounds like a nice idea; however, I have not seen such a provision in any HOA CC&Rs or rules during 32 years of advising HOAs. Several years ago, the Community Associations Institute sponsored a bill proposing low-cost training for HOA directors, but it did not become law. AB 1410 would add a Civil Code Section 5101 requiring all of California’s 200,000 or more volunteer directors and every HOA employee (including everybody from managers to maintenance personnel) to take a course on “ethics and harassment prevention.” No information on course content, legitimacy, length, or cost is provided. AB 1410 would also create a new Civil Code Section 5870, prohibiting HOAs from pursuing enforcement actions of any kind during declared emergencies or quarantines,...
Legislators are Discussing Many Proposed New HOA Laws – Here are Sacramento’s Good Ideas

Legislators are Discussing Many Proposed New HOA Laws – Here are Sacramento’s Good Ideas

In typical years the Legislature considers a handful of bills concerning HOAs, but 2021 is an unusually heavy year. There are at least 20 bills pending that reference or directly affect common interest developments. Many are technical, but a handful of bills propose to make significant changes (some good, and some bad) to California associations. This column addresses five bills in which their current form would help HOAs, and next week’s will cover some unhelpful proposals. Senate Bill (“SB”) 392 is sponsored by the California Association of Realtors and authored by Senators Archuleta and Hueso. It would help HOAs by amending Civil Code Section 4040(a) so that starting in 2023 HOAs could use email as the default method of sending documents or notices to members. Members could still opt for postal mail, but most presumably would accept electronic mail, thereby saving association time, resources, and cost. The bill also would require HOAs of over 49 members to have websites providing general information to members unless two third of the members voted otherwise. Assembly Bill (“AB”) 502 by Assembly Member Davies, would modify Civil Code Section 5100 to allow HOAs of any size to forego sending out ballots if at the end of the nominations period the number of eligible candidates matched the number of open seats. In that situation, the bill would allow the HOA to declare the nominees elected to the open seats, saving the HOA the money and time of an election, which is a foregone conclusion. Presently, for reasons this writer does not understand, the current Civil Code Section 5100(a) allows only HOAs of 6,000+ members...
Behind Closed Doors – What Is (And Is NOT) OK in Closed Session

Behind Closed Doors – What Is (And Is NOT) OK in Closed Session

The Open Meeting Act (Civil Code Sections 4900-4955) is the HOA version of California’s “Brown Act,” requiring openness in governance meetings. However, the Brown Act (Government Code 54950-54963) generally applies to public agencies, commissions or private corporations created by a public agency. Since HOAs are private associations, the Brown Act does not apply to them, but the Open Meeting Act does apply. One Open Meeting Act’s key features is the prohibition in Civil Code Section 4910 of a quorum of the board discussing any HOA business outside an open board meeting, whether in person, telephonically or via electronic mail. The important exception to this requirement is executive session, in which the board discusses matters which for important reasons must be confidential and not discussed in front of the membership.  The Open Meeting Act provides at Civil Code Section 4935 for closed executive session but only permits a small list of permissible topics. Boards may in executive session discuss litigation (presumably including any attorney advice about potential litigation), personnel matters, member disciplinary or common area damage reimbursement hearings, assessment foreclosure votes, discussion with a delinquent member regarding their proposed repayment plan, and matters relating to formation of contracts with third parties.  A few of these permissible topics are frequently misinterpreted. By “personnel,” the law does not refer to the staffing of committees or filling board vacancies, but rather references association employees. Unless the association employs individuals who are paid directly by the association, there are no personnel to discuss in executive session. Another very commonly misapplied topic is “formation of contracts.” Note the term “formation” is used, as opposed to...
Capping Rentals Under Civil Code 4741

Capping Rentals Under Civil Code 4741

Hi Kelly, thank you for your weekly articles, I really enjoy them. Regarding your recent article, does the section 4741 approval of rental caps as low as 25% of the HOA mean an HOA such as ours can disallow rentals above that percentage? We are a small community with surging rentals, creating automobile congestion on our streets. Thank you for your time, P.W., San Diego Dear P.W.: Civil Code Section 4741, new in 2021, allows HOAs to set rental caps as low as 25%. That is a minimum, so HOAs with current caps above 25% are unaffected by that aspect of the new law. HOAs adopting a rental cap should remember that Civil Code 4740(a) still applies so that the new cap, which is a partial prohibition, would apply only to owners acquiring title after the date the cap was voted into place. Sincerely, Kelly Dear Kelly: A group of us would like to put out to a member vote to have our CC&R’s changed to have a 25% limit for rentals that is within the new Assembly Bill 3182 law in California.  The board says their decision is to not have any limit and our current CC&R’s do not have any restriction on the number of renters.  What can we do to get this out to a vote of all homeowners? E.P., San Diego Dear E.P.: Over the years, my experience has been that the subject of rentals is the most common source of controversy when associations are discussing updating their CC&Rs. Some association communities prefer wide open rentals while others prefer a cap or other limitations. Before...
Reader Questions – Renting to Criminals, Move in Fees, and What is “Single Family”?

Reader Questions – Renting to Criminals, Move in Fees, and What is “Single Family”?

Dear Kelly: My HOA made a change in the CC&Rs. Renters must be approved by the board and nobody with a criminal record shall be approved. Can they make these demands for just rental units and not units being sold? Wouldn’t criminal records be just as important about potential buyers? J.S., San Pedro Dear J.S.: The state Fair Housing regulations which took effect in 2020 do not permit a blanket housing discrimination against persons based upon criminal history. Under Title 2 Section 12266, there must be some connection between the criminal history and the HOA’s safety concerns. So, for example, someone who had been convicted of arson or a violent crime might be a reasonable concern, unlike someone who had committed loan fraud. Hopefully your HOA had the benefit of legal advice when the members amended the CC&Rs to require prospective tenants to be approved by the board. Ask counsel to review the criminal history issue and make sure the HOA’s policy does not violate the regulations.  Best, Kelly Hi Kelly, our association requires that owners notify management before moving occupants in or out of their unit, and management arranges for a representative to observe the moving of belongings and to document the impact upon any common areas. Deposits and the observer cost also must be paid. Furniture or appliances or other large items cannot be moved in or out of a unit except when purchasing new furniture. Owners who ignore this rule may be fined. I would like your opinion on this policy. Thank you. C.R., Imperial Beach. Dear C.R.: The association is responsible to protect the common...
Reader Questions – Rental Issues

Reader Questions – Rental Issues

[Dear Readers: Last week’s column on views contained a significant typo. Views are NOT automatically protected in California. My inadvertent omission of the word “not” reversed the meaning of the topic sentence. Please excuse this error.] Kelly, I have a home that I rent. Last week I received a traffic notice stating my HOA account was levied a fine of $100 for speeding, committed by my tenant’s caregiver. Is it lawful for an HOA to be able to fine an absentee owner for behavior of a guest not known to owner? Thank you, J.S., Mission Viejo Dear J.S.: Tenants, guests or visitors should fairly be expected to follow the association rules, but they are not subject to the CC&Rs since they are not members. Many associations have provisions in their governing documents holding the host member responsible for violations or damage caused by their tenants, guests, or visitors. Without that, the HOA would be powerless to respond to conduct which could be detrimental or even dangerous to other residents. By the way, that $100 fine is not enforceable until the HOA holds a hearing and invites you to attend, pursuant to Civil Code Section 5855. In the future, seek reimbursement from your errant tenant or guest. Sincerely, Kelly Dear Kelly: The “short-term” rentals issue has been a thorn in our side. Short-term rental conditions are mandated by the city. In your experience what has been the position of HOA’s on the short-term rental situation.  P.P., Cathedral City Dear P.P.: Many cities consider short-term rentals to be a non-residential use and so either ban the practice or require licensing and...
Reader Questions – Are My Views Protected or Not?

Reader Questions – Are My Views Protected or Not?

Dear Kelly: My HOA requires that trees be situated so “normal enjoyment of view by other lot owners shall be required.”  It also says that the HOA controls tree trimming that “is necessary to prevent the obstruction of the view of lot owners.” Is this standard language or has it been prohibited by statute in any way? Sincerely, P.D., San Diego Hi Mr. Richardson: We have lived in the same neighborhood for 25 years.  One of the main reasons we decided to purchase this property was the incredible view. The association used to trim the trees annually, then moved the trimming to every two years and in recent years have said that an arborist recommends the trees not be topped as it isn’t good for the trees.  So instead of mountain and hill views all I can see are trees. The covenants say that vegetation on the common area is to be cut at such intervals so that the view of any owner is not unreasonably obstructed. R.H., Lake Forest Dear Kelly: We have lived in our home for over 25 years, and initially we had a sprawling view. Many years later our neighbor’s tree is enormous and never maintained. I have been bringing this to the HOA’s attention for years. Now there is a wall of trees encapsulating our property. Thank you for your response.   Sincerely, E.O., Northridge Dear P.D., R.H., and E.O.: Under longstanding California real estate law, land ownership does not automatically include view rights. However, as a private covenant between owners of the properties subject to those covenants, CC&Rs can include view protection. Check the...