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Community Association Update: Issue # 46
- Your County is Off the COVID-19 Monitoring List...But Don't Open the HOA Gym Just Yet!
- Protecting HOA Members' Contact Information
- Branches Decision Overturned as it Violates Public Policy
- HOA Restrictions on Emotional Support Dogs in Pool Area
- Why Should My Attorney Review Contracts?
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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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Your County is Off the COVID-19 Monitoring List...But Don't Open the HOA Gym Just Yet!
California homeowners associations started reopening community gyms when the State of California began easing restrictions imposed by the initial COVID-19 stay-home orders from March 2020 according to stages of a reopening roadmap. Thereafter, COVID-19 cases across the state began to spike, causing the state to issue renewed restrictions as set forth in the July 13, 2020 Statewide Public Health Officer Order ("Order"). These renewed restrictions forced HOAs in counties on the Monitoring List, including Orange, San Diego, Placer & Santa Cruz counties, to close previously-reopened gyms and fitness centers unless they could safely operate outdoors.
Due to reduced cases and otherwise meeting the requirements for slowing the spread of COVID-19, Orange, San Diego, Placer and Santa Cruz counties were recently removed from the state's Monitoring List. However, the removal does not mean that community gyms and fitness centers may reopen at this time. This is because Section 3 of the Order provides that counties placed on the Monitoring List must close indoor gym and fitness center operations, but does not provide for the reopening of those indoor operations once a county is removed from the Monitoring List. For that to happen, the state must modify the Order and authorize the re-opening of indoor fitness facilities. Applicable county orders must also be similarly updated.
For now, the state's COVID-19 website clearly states, "[c]ounties on, or recently removed from, the County Monitoring List must close indoor operations for the following business sectors, events, and activities . . . Gyms and fitness centers . . ." While this state of events may be disappointing for homeowners, continued reduction of COVID-19 cases across the state should encourage state officials to reopen indoor fitness facilities when reopening can be accomplished safely.
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Protecting HOA Members' Contact Information
*Asked and Answered
Asked - Our HOA Board of Directors just learned that any member may request a copy of our HOA's membership list and have access to other members' personal contact information. Is there anything we can do to protect the privacy of our members who may not want their personal information shared with others in our community?
Answered - Yes. California law does allow any member of your HOA to inspect and copy specified " association records," which include your HOA's membership list. The membership list contains member names, property addresses, and mailing addresses. Moreover, due to recently enacted legislation, the membership list now includes member email addresses as well. ( Civ. Code section 5200(a)(9).) This raises several privacy concerns. Members making a request for the membership list could ultimately give or sell the list of addresses to soliciting vendors, or use the contact information contained in the membership list for other improper purposes. To prevent this result, our HOA lawyers encourage our clients to become familiar with Civil Code section 5220. This provision allows a HOA member to submit a written request to be removed from (to "opt-out" of) the membership list in order to prevent the disclosure of their private contact information to other members. This opt-out remains in effect until changed/revoked by the member.
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Branches Decision Overturned as it Violates Public Policy
In the Aldea Dos Vientos case, the Second District Court of Appeals vacated the lower court's decision on the basis that the arbitrators exceeded their powers by issuing an award that contravenes an explicit legislative expression of public policy. More specifically, the Court of Appeals found that the CC&Rs violate public policy because it gives the Developer the unilateral power to bar an action against itself even though the Legislature clearly intended for housing to be free of substantial construction defects.
Furthermore, the Court of Appeals held that the CC&Rs, and any similar provision, is not just unreasonable but unconscionable. The Court stated, "[i]t gives the Developer veto power over the Association's claims in spite of the members' vote to proceed with the arbitration." In sum, such a provision amounts to a trap for the unwary set by the Developer to bar claims against it. For these very reasons, the Second District Court of Appeals declined to follow its sister court's ruling in Branches.
The Court of Appeals also acknowledged that the Legislature has already found similar provisions to be unconscionable. Senate Bill 326 was enacted on August 30, 2019 and took effect on January 1, 2020. The bill added Civil Code, section 5986, subdivision (b) to the Davis-Stirling Act, which prohibits an association's CC&Rs from limiting a Board's authority to initiate legal proceedings against its Developer. The Civil Code applies retroactively to any CC&Rs with such limiting language.
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HOA Restrictions on Emotional Support Dogs in Pool Area
*Asked and Answered
Asked- Our Association does not allow pets in the pool area, but a resident has recently begun bringing her emotional support dog to the pool-side lounge area. Do we have to let the dog accompany its owner to the pool?
Answered - Probably. The Federal Fair Housing Act requires housing providers to make reasonable accommodations that may be necessary to allow persons with disabilities to enjoy their housing, including common area spaces. An accommodation is typically considered reasonable if it does not impose an undue financial and administrative burden on the housing provider or fundamentally alter the nature of the provider's operation. Normally, allowing an emotional support dog to use a common area that is otherwise off limits to pets will not create such a burden on the homeowners association ("HOA").
However, like other dogs within the Association, an emotional support dog must remain under the control of its owner. This means the HOA can require that the dog remain on a leash while it is poolside with its owner unless a specific accommodation to allow the dog off-leash is requested by the dog's owner and granted by the HOA - there are very limited circumstances when a dog does not have to be leashed or crated. Furthermore, if the dog causes a nuisance (for example, uncontrolled barking) or poses a threat of harm to another person or the property of another person, the HOA can restrict the dog's presence in order to eliminate the nuisance or threat to other residents of the HOA.
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Why Should My Attorney Review Contracts?
*Asked and Answered
Asked- Our HOA community manager always recommends that our vendor contracts be reviewed by our HOA attorneys before we sign them. Is this really necessary?
Answered - Yes! Contract review is an integral step to protect the HOA against future contract disputes. Oftentimes, HOA Boards of Directors don't think twice about a contract until there is a dispute with the other party later on. By this point, it's too late to negotiate contract terms, and the Board is often left to interpret and navigate poorly written and single-sided provisions that do not provide any support or protection to the HOA.
Contract disputes can be extremely costly and time-consuming. Since contract disputes and related expenses are unpredictable, they aren't necessarily incorporated into the HOA's annual budget; this can put a lot of financial strain on the HOA and could lead to special assessments on the membership to cover the costs. Furthermore, contract disputes can leave the HOA tied up with a vendor in which they'd rather part ways. This could leave the HOA without the ability to hire a new, better-qualified vendor to perform the job at hand.
By taking the time up front to work with our expert attorneys, Board members can be assured that they are prudently adhering to their fiduciary duties and feel confident that they have taken appropriate measures to mitigate costly and time-consuming contract disputes in the future.
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FIRM NEWS
Welcome Attorney Bradley D. Walker to the Tinnelly Team!
Brad has been a member of the California State Bar since 1982, and a member of the Wisconsin State bar since 1981. He is a past President and past Director of the Community Association Institute - Orange County Regional Chapter. Brad has lectured locally and nationally on behalf of the Community Associations Institute and the California Association of Community Managers. He is the author of numerous articles relating to homeowners associations and has served on the faculty for California Continuing Education of the Bar (CEB) programs on community association law.
Since 1984, Brad has attended over 1,500 homeowners association meetings, and represented his associations in all forms of Alternative Dispute Resolution. In addition to his Association clients, he represents individual and business entities in a wide variety of real estate and commercial matters, and has testified as an expert on Community Association practices and procedures. Mr. Walker's preparatory education was received at the University of Wisconsin where he graduated with the degree of Bachelor of Science (B.S.), With Distinction, in 1977. His legal education was received at Pepperdine University where he graduated with the degree of Juris Doctor (J.D.), in 1981. He has practiced law in Orange County since 1982, and has served as a Judge Pro Tem of the former Orange County Municipal Court.
Brad is a celebrated leader in our industry that has shaped the field of HOA law in countless positive ways for over three decades. In addition to his remarkable achievements and experience, he adds unique value by serving as an inspiration to everyone who has the privilege of working with him. It's an honor to welcome Brad to our team and we look forward to contributing to his continued success.
Welcome New TLG Clients!
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