 |
|
Community Association Update: Issue # 45
|
|
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
|
|
|
 |
|
Thinking About When to Open Common Area Amenities? A Blue-Print to a Successful Re-opening
The decision to re-open HOA amenities depends upon the location of that community and its ability to comply with government orders. CAI (Community Associations Institute) recommends that HOAs follow state and local (County and City) stay-at-home orders. According to Governor Newsom, California counties can decide to move more quickly (or slowly) than the statewide baseline (currently, at Stage 2, as of Wednesday, May 13, 2020). For example, on May 6, 2020, Riverside County issued guidelines for the operation of HOA pools and spas - with limitations.
If permitted by local governing authorities to re-open HOA amenities, boards of directors should then decide whether that action is right for their HOA. Is it possible to comply with applicable safety guidelines? Can the HOA regulate limited resident use? Can the HOA afford the expense of additional common area maintenance?
State and local stay-at-home orders evolve on a day-to-day basis. Therefore, state, county, and city web sites should be regularly reviewed to understand what is and what is not permitted at any given time.
|
|
|
|
The Rule of Judicial Deference: Protecting HOA Decisions Based on Reasonable Investigation and Made in Good Faith
Volunteer
officers and
directors of an HOA are required to make decisions which often have significant legal and financial implications for the HOA and its membership. Because they are unpaid
volunteers, officers and directors are afforded certain protections against personal liability similar to those afforded to directors and officers of other types of nonprofit corporations. Those protections are necessary in order to secure members willing to serve a HOA's board.
Nevertheless, the Rule of Judicial Deference does not necessarily extend to every action (or decision not to act) that the board may take. Notably, the rule set forth in Lamden was tied solely to board decisions concerning "ordinary maintenance." It does not create comprehensive protection for every decision and action of a HOA; rather, such "deference applies only when a homeowner sues a [HOA] over a maintenance decision that meets the enumerated criteria." (Affan v. Portofino Cove HOA (2010) 189 Cal.App.4th 930, 940.)
In the recent unpublished case of
Jongerius v. Sun Lakes Country Club Homeowners Ass'n
(2019) Cal. App. Unpub. LEXIS 7316 ("
Jongerius
"), the California Court of Appeal touched on the
Affan
holding, as well as other holdings applying the Lamden rule, when rejecting the homeowners' argument that the scope of the Lamden rule is limited to decisions that relate to damaged common area and not to private property.
|
|
|
|
How Quickly Must HOAs Bring Suit Against Homeowners for Violations of the Governing Documents?
*Asked and Answered
Asked- Is the Board of Directors required to bring legal action, within a certain timeframe, against a homeowner, who is violating the association's governing documents?
Answered - In most circumstances, the association has five (5) years to bring legal action against violating homeowners pursuant to the Statute of Limitations. (See Code Civ. Proc., § 336(b).) The Statute of Limitations begins to run from the time the board discovers the violations or, through exercise of reasonable diligence, should have discovered the violations. Determining when the Statute of Limitations begins to run is a fact intensive inquiry, which must be evaluated on a case-by-case basis.
When the board of directors discovers a violation, or is notified of the same, it should promptly investigate the matter to determine the best course of action to compel the homeowner's compliance. Before resorting to litigation, HOAs should always weigh the costs of litigation, the seriousness of the violation, and the likelihood of success at trial. The board of directors possesses wide discretion to determine whether or not to move forward with litigation, so long as the board is acting in good faith and in the best interests of the HOA.
|
|
|
|
Can an Association Prohibit Smoking Inside the Units?
*Asked and Answered
Asked - Can a homeowners' association prohibit owners from smoking within the interior of their units?
Answered - The California Legislature has recognized that HOAs require flexibility in adopting and enforcing "operating rules" governing the use of common areas and exclusive use common areas such as parking spaces, patios and balconies. The California Civil Code provides this flexibility by granting HOAs authority to adopt and enforce such operating rules without requiring a formal amendment to the HOA's CC&Rs. (Civ. Code § 4350.)
Most CC&Rs provide that the board's rule-making authority extends to activities affecting "the Common Area and the facilities thereon." Such a provision therefore does not authorize the board to promulgate new operating rules regulating conduct inside the units. Notwithstanding that fact, many CC&Rs also contain a use restriction prohibiting residents from engaging in activities within
their units which would constitute a "nuisance."
Any operating rule adopted by the board prohibiting smoking within the interior of the units would not necessarily be tantamount to a new 'rule' of the HOA. Rather, it would be a policy clarifying the extent of a use restriction that already exists within the CC&Rs-a use restriction which prohibits nuisance activities, and which further confers upon the board the discretionary authority to deem smoking a prohibited nuisance.
Based upon the foregoing and the strong public policy with respect to regulating tobacco smoke exposure, we believe the board is within its authority to implement a policy that prohibits smoking anywhere within the HOA's development-including the units-provided that the CC&Rs contains language similar to that quoted above. Such action would be based upon the board's position that smoking and secondhand smoke is a hazard and a nuisance, and thus conduct which is prohibited by the existing language of the CC&Rs.
|
|
FIRM NEWS
Check out TLG's new Election Timeline Builder!
Attention HOA management professionals frustrated by the process of computing Director election timelines:
Do you believe there has to be something easier than relying on crude 'days between dates' websites, imprecise spreadsheet formulas, and counting days on your fingers? If so, we have some exciting news for you: there is.
Check out Tinnelly Law Group's new Election Timeline Builder! It's web-based, dynamic, and easy-to-use. It also has some great features built in such as automatic adjustments for weekend dates and a beautifully styled printout function. And yes, it's completely free.
We hope you love it as much as we do!
tinnellylaw.com/election-timeline
Welcome Attorney Vivian Tran to the Tinnelly Team!
Vivian obtained dual degrees from the University of California, Davis with a Bachelor of Arts in Economics and a Bachelor of Science in Biological Sciences. She graduated with her Juris Doctorate from the University of the Pacific, McGeorge School of Law where she focused on business and international law. During law school, she was a research assistant for the Nepal Treaty Negotiation BLA Project and participated in the Anthony M. Kennedy American Inn of Court. She also received the Capital Commendation for Public Service Award for her volunteer efforts.
Vivian garnered clerking experience from her externship with Chief Judge Ronald H. Sargis, at the United States Bankruptcy Courts Eastern District of California. She is also a licensed mediator and obtained extensive negotiation skills through the Program on Negotiation (PON) and 1983 Civil Rights cases she co-mediated with Magistrate Judges Kendall J. Newman and Craig M. Kellison.
Prior to joining Tinnelly Law Group, Vivian served as a litigation attorney practicing in HOA, complex business, real estate, and employment law in Los Angeles. She was the handling attorney representing a world-renowned tech company in a complex breach of contract with damages exceeding nine figures. Regarding HOA matters, Vivian has handled many insurance defense litigation cases dealing with contracts, fraud, negligence, breach of fiduciary duty, and title among other things. She is no stranger to the interpretation and enforcement of governing documents, third-party vendor contracts, settlement negotiations, and offering preventative litigation measures to community managers and Boards of Directors.
Vivian is fluent in Vietnamese and conversational in Italian. In her spare time, she volunteers with San Diego's Habitat for Humanity, dabbles in the housing market with her California real estate license, and enjoys the beautiful beach sunsets of San Diego.
Vivian's experience representing HOAs in a variety of complex insurance defense cases adds significant value to our team and our growing family of clients. She brings an infectious level of energy, enthusiasm, and pride in her work that reinforce our firm's culture and core values. We are thrilled to have her!
Welcome New TLG Clients!
|
|
|
|
| |
|
|
|
|
