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Community Association Update: Issue # 37
- Water Damage Claims in Your Association
- Sticks and Stones
- HOA CC&Rs & Condo Plan Trump Conflicting Rights Conveyed in Deed
- HOA Short-term Rental Rule Violated California Coastal Act
- Solar Panels on Common Area Roofs; Have a Policy Yet?
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This Community Association Update is part of our commitment to providing the highest quality legal services to our clients and industry partners. If your company or Association would like to see a topic or issue covered in future editions, feel free to call our offices, email us, or submit a question online!
Sincerely,
Steven Tinnelly, Esq.
Tinnelly Law Group
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Water Damage Claims in Your Association
*New Library Article
Many condominium associations face problems due to a misunderstanding of how their association's policies of insurance operate and should be utilized-especially in connection with property damage emanating from broken pipes or plumbing fixtures. Those problems include, among others: (a) denying owners the benefit of the insurance coverage to which they are entitled; (b) having the association assume broader repair responsibilities than what it legally must or should; and (c) failing to adopt policies to allow for losses to be resolved in consistent, equitable and cost-efficient manners.
Our HOA attorneys have authored a new article to address these problems by dispelling some of the confusion at their core. In doing so, we provide recommendations as to how condominium associations should approach water damage claims with the assistance of their HOA legal and insurance professionals. Those recommendations include what we believe every condominium association should adopt as part of their operating rules: a "Water Loss Policy."
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Sticks and Stones
As HOA industry professionals, there are many positive aspects to our occupation. We work with a diverse group of people, take fulfillment from helping volunteer boards, and are happy when we solve problems through creativity. Unfortunately, there are situations that can become difficult.
Most association managers ("Manager") have had some experience dealing with abusive homeowners and demanding board members ("Hostile Actor"). Typically, the Hostile Actor exhibits unrelenting behavior that becomes obnoxious despite Management's best efforts.
The purpose of this article is to provide Managers with a brief primer as you experience hostility in the moment - via email correspondence, telephone calls, or direct confrontations.
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HOA CC&R & Condo Plan Trump Conflicting Rights Conveyed in Deed
*Unpublished Opinion
Homeowners Association ("HOA") Boards of Directors and management professionals often encounter disputes with homeowners as to who has the right to use common areas parking spaces within a condominium development. Homeowners often believe that such spaces are part of their separately owned units (their separate property or "separate interest"); that the spaces were "deeded" to them and the HOA is therefore is limited in its ability to regulate, restrict, or reassign the use of those spaces. For most condominium projects, parking spaces are portions of common area which the HOA may-or in some instances must-reserve for a particular homeowner's exclusive use, based upon the language of the HOA's governing documents (i.e., the language of its
CC&Rs and/or
condominium plan).
We have seen instances where the deed to a unit that was conveyed to the homeowner by the initial developer of the HOA does include a reference to a particular common area parking space as assigned to the homeowner for her
exclusive use. However, such deeds often parallel language in the HOA's CC&Rs and/or condominium plan which support that exclusive use assignment. In other words, the language of the deed merely reiterates the applicable language of the CC&Rs and/or condominium plan establishing a particular parking space as a portion of common area for which the homeowner listed in the deed has exclusive use easement rights.
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HOA Short-term Rental Rule Violated California Coastal Act
*New Case Law
The issue of short-term rentals (or "vacation rentals") is becoming increasingly significant for homeowners associations ("HOAs"). The concerns and problems that arise from having revolving groups of vacation renters in HOAs are well-documented, such as the fact that vacation renters are often "less careful in using the common facilities because they are not concerned with the long-term consequences of abuse."
Watts v. Oak Shores Community Assn. (2015) 235 Cal.App.4th 466, 473.
To avoid these problems, many HOAs have lease restrictions within their governing documents such as a restriction which prohibits the rental or leasing of a property for a period of less than thirty (30) days. Such a restriction was adopted in 2016 by the coastal community of Mandalay Shores Community Association ("Mandalay Shores"), together with a schedule of significant fines that may be imposed on the owners of the roughly 1,400 homes in Mandalay Shores who violate the short-term rental rule. Two owners filed suit against Mandalay Shores seeking an injunction to stay the enforcement of the short-term rental rule, contending that the rule violates the
California Coastal Act (Pub. Resources Code Sec. 3000 et. seq) (the "Act").
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Solar Panels on Common Area Roofs; Have a Policy Yet?
The
California Solar Rights Act ("Act"), found at Civil Code §§
714 and
714.1, provides certain protections for homeowners seeking to install
Solar Energy Systems (i.e., solar panels) on their properties ("Systems"). The intent of the Act was to prevent associations from broadly banning Systems for aesthetic reasons-whether through an explicit ban, or through onerous architectural restrictions that greatly increase System costs or reduce performance. To that end, the Act rendered void and unenforceable any provision of an association's governing documents that "effectively prohibits or restricts the installation or use of a solar energy system."
Civ. Code § 714(b). The Act does permit associations to place "reasonable restrictions" on the installation or use of Systems, as defined in Civil Code § 714(b). However, in reality, those "reasonable restrictions" are extremely limited in scope. To illustrate, any restriction which increases the cost of a System by more than $1,000, or which decreases its performance by more than ten percent (10%), from what was originally proposed by the homeowner is not a "reasonable" restriction and therefore unenforceable.
Civ. Code § 714(d)(1)(B).
For planned developments with detached homes, the application of the Act is relatively straightforward because it applied to Systems that were installed on a homeowner's "separate interest." However, what was less clear was the extent to which the Act applied to homeowners within
condominium developments. In a condominium development, a System would not be installed within or upon a homeowner's separate interest. Rather, the System would be installed on
common area components such as the roofs, garages or carports.
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FIRM NEWS
New TLG Attorney! Welcome Tim D. Klubnikin, Esq.
Tinnelly Law Group is proud to announce the addition of attorney Tim D. Klubnikin, Esq. to the firm.
Mr. Klubnikin
received his Juris Doctorate from Southwestern Law School. Graduating in less than 23 months, Mr. Klubnikin participated in the SCALE program, the nation's oldest 2-year J.D. program. He was also a Witkin Award recipient for academic excellence and was a teaching assistant for a Civil Practice workshop. Since law school, he has tutored students for the California bar exam.
The impressive speed and success with which Mr. Klubnikin accomplished his legal studies has carried over to his achievements during his legal career--the majority of which has been dedicated to the representation of HOAs across California including prominent high-rise condominium developments. Prior to joining our firm, Mr. Klubnikin specialized in representing HOAs in the context of HOA maintenance, construction, and new development issues. Mr. Klubnikin's passion for teaching continues into his HOA practice, where he excels at informing and educating HOA boards and their community managers on the law governing their California common interest developments.
Tim is another strong addition to our growing team of talented attorneys. In addition to his wealth of experience in HOA matters, his extensive knowledge of HOA construction and new development issues provides a unique perspective on matters that many of our clients face. HOAs in California are growing in number, size and complexity. As a premiere HOA law firm, we understand the need to have a diverse team of exceptional attorneys who can add value to our clients in multiple ways and in a broad spectrum of issues. Tim is no exception. We are thrilled to have him on the team.
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