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Community Association Update: Issue # 42
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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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Droning On and On...Should Associations Use Them to Catch Violators in the Act?
Serial dog poop litterers, unauthorized parking of vehicles, architectural violations, smoking nuisance-the list goes on and on when it comes to common "repeat violations" that a homeowners association ("HOA") encounters on a day-to-day basis. With the increasing number of repeat violations and limited number of HOA board members and property managers, questions have surfaced whether or not HOAs may, or should
, utilize drones to enforce violations. Specifically, HOA boards are concerned with the legal implications that such utilization may impose because, well, why wouldn't an HOA board want to send out a drone to inspect an architectural violation or monitor a smoking nuisance in lieu of physically walking to the property to do the same? In addition to the convenience factor that drones provide, it gives HOAs the added benefit of having concrete, recorded evidence should the violation escalate to the level of arbitration or judicial enforcement.
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The Modern Age of Social Media and the Need for Regulation Within Homeowners Associations
Like it or not, we live in the age of social media. It is undeniable and has dramatically transformed the way we communicate in every arena, including homeowners associations ("HOA"). Information, opinions and images are broadcast and circulated at a rapid pace with little or no oversight involved. These unfiltered transmissions over social media airwaves can have profound impacts on homeowners associations'
board of directors
, as well as its membership.
The lack of regulation on social media communications can cause neighborhood tensions and smear the reputation of a community, causing a negative effect on property values. This has led many homeowners associations to develop protocols and guidelines with regard to social media.
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SB 234 Signed! Keeping the Kids Close to Home Act
*New Legislation
Governor Newsome recently signed into law Senate Bill 234 ("
SB 234
"), also know as the "Keeping Kids Close to Home Act." The new law will take effect on January 1, 2020. SB 234 permits large daycare homes, which provide care for up to 14 children at one time, to operate within HOA communities regardless of contrary language in their CC&Rs. The purpose of SB 234 is to increase the availability of childcare for families across the state by making it easier for daycare homes to operate in residential neighborhoods.
HOAs across the state should be aware that Owners have the right to open large daycare homes within the community, regardless of restrictions against commercial use or for single family use.
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SB 326 Signed! Balconies, Branches, and Builder Defect Actions
*New Legislation
Senate Bill 326 ("
SB 326
") was recently enacted by the California Legislature and will take effect January 1, 2020. The bill accomplishes 3 main objectives: 1) it requires associations to conduct mandatory inspections for exterior elevated elements, such as decks, balconies, and walkways; 2) it invalidates and prohibits provisions in an association's governing documents that restrict the board's authority to initiate a legal proceeding against a developer for substandard construction; and 3) it requires an association to discuss with the membership the potential impacts of a construction defect action against the developer prior to the initiation of such an action.
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Appellate Court Rules on Ambiguous Architectural Restrictions
*New Case Law
The California Court of Appeal recently ruled on the case of
Eisen v. Tavangarian
(2019) 36 Cal.App.5th 626, which involved a view protection dispute between neighbors. The Plaintiff Homeowners sued the Defendant Homeowners and alleged that Defendants' remodeling violated several provisions of the HOA's
CC&Rs
.
The trial court agreed that the Defendant violated the CC&Rs and ordered the Defendants to remove many of their architectural improvements, which detracted from the Plaintiffs' view. The trial court also ordered that the Defendants pay the Plaintiffs in the amount of $39,000.00 as interim damages for their view loss.
The appellate court disagreed and overruled a substantial portion of the trial court's judgment. As a result, the Defendants were permitted to maintain their home as remodeled with the exception of some hedges that needed to be trimmed.
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Can an Association Create and Enforce Rules that Only Apply to Children?
*Asked and Answered
Asked - Our Association is seeking legal guidance regarding children playing in the common areas and driveways. Several homeowners have complained about the number of children playing without supervision. Drivers report their concern for the children's safety as there have been several reports of children almost hurt. The Board would like to know if they have the authority to restrict children from playing in the common areas and/or driveways?
Answered - The short answer is that the Association would be exposing itself to a risk of liability under federal and state anti-discrimination laws by adopting a rule or policy that outright prohibited children from playing in the common areas; including the streets and driveways. This risk would extend to other rules that specifically apply to children only, as opposed to all members/residents of the community. To avoid the risk of a discrimination claim, associations should strive to craft and enforce rules that apply equally to all members and residents within a community.
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FIRM NEWS
Welcome Senior Attorney Carrie N. Heieck!
Carrie has been practicing law for fourteen years - primarily representing corporate and institutional clients in areas including corporate formation, contracts, and real estate issues. It was by chance that she began representing several homeowner associations through word of mouth and discovered a niche of the law that she loves. For the last four years, she has practiced solely in the area of HOA law and would not have it any other way. While her forte is educating and counseling her association clients on community association law compliance, the interpretation and drafting of governing documents, and how to best avoid litigation, Carrie is also a seasoned litigator who was counsel for the prevailing party in the published mortgage and banking appellate case, Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal. App. 4th 118.
Carrie is precisely the type of leader our firm's culture is built around. Her dedication, enthusiasm for her work, and her deep care for her clients' interests are infectious. We are thrilled to have her spearhead our new Carlsbad office and we know she will add tremendous value to our growing family of San Diego area clients.
New Carlsbad Office Grand Opening December 1, 2019!
Welcome New TLG Clients!
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