California legislates Freedom of Religion on Community Association Doorways

California legislates Freedom of Religion on Community Association Doorways

Senate Bill 652 was signed into law by Governor Newsom protecting the rights of homeowners who wish to display religious symbols on the doorway of their homes. SB 652 adds to the Davis Stirling Common Interest Development Act Civil Code Section 4706 which provides that no governing document shall limit or prohibit the display of one or more religious items on the entry door or entry door frame of a member’s separate interest. Interestingly, this law follows the lead of several other states that over the years have protected the rights of Community Association residents to freedom of religious expression. For years, many communities have allowed residents to hang religious symbols such as holiday wreathes on front doors or lights around the doorway during the Christmas season. Controversy arose, however, when practicing Jews placed mezuzahs on their door frames or Hindus draped religious flags (“Jhgandis”) around their doorways. These common area expressions of religious beliefs were often seen in conflict with architectural rules prohibiting modification of exterior doors or the display of person items in common area. Ironically, the State and Federal Fair Employment and Housing Act (FEHA), which is modeled after the Federal Fair Housing Act (FHA), prohibits housing discrimination on the basis of race, color, national origin, religion, sex, familial status, and disability. This requires that no covenant, law, or rule discriminate against a resident on the basis of their religion. The Fair Housing Act has long required residential communities to make reasonable accommodations to their rules, policies, practices, or services when necessary to afford persons an equal opportunity to use and enjoyment of a dwelling. If a resident is...
Senate Bill 563 Brings Sweeping Changes to The Open Meeting Act and How Community Association Boards and Their Managers Conduct Association Business

Senate Bill 563 Brings Sweeping Changes to The Open Meeting Act and How Community Association Boards and Their Managers Conduct Association Business

The Open Meeting Act (Civil Code Section 1363.05), first passed in 1995, has been amended and expanded several times over the years; however, the changes which took effect in January 2012 SB 563 are by far the most sweeping in their impact upon California common interest developments. Elimination of action without a meeting by unanimous written consent. The heart of SB 563 was its ban of board decisions by unanimous written consent. This method of decision-making was previously permitted by the Corporations Code but is now not permitted. Agenda notice of executive session meetings. Although the Act requires agendas and notice to be posted four days before an open board meeting, prior law was unclear about whether notice of an executive session meeting was required. CC 1363.05 mandates a minimum of two (2) days’ notice of an executive session board meeting. No board decisions by email, except in emergencies. The Open meeting Act prohibits boards from making decisions by e-mail, except in the case of an emergency. A decision may be made by e-mail if the board unanimously agrees to do so. The decision to meet by email may be made also by email and the e-mails must be made part of the minutes of that meeting. The definition of “emergency” is already contained in the Open Meeting Act: “…if there are circumstances that could not have been reasonably foreseen which require immediate attention and possible action…” Telephonic board meeting participation. The Open Meeting Act now declares a telephone conference between a majority of the directors to be a “board meeting”. A director may participate by telephone, so long...
New Law Mandates Battery Back-up for all Residential Garage Door Motors

New Law Mandates Battery Back-up for all Residential Garage Door Motors

SB 969 amends Section 19891 and adds Section 19892 to the Health & Safety Code and mandates all residential garage motors be equipped with back up battery functions.   Section 19892 provides that after July 1, 2019, any automatic garage door opener manufactured, sold or installed shall be equipped with a battery back-up function such that the automatic garage door opener functions during a power outage. This code section applies to “all automatic garage door openers manufactured or sold for use in any residence or other residential applications of automatic garage door openers manufactured for commercial purposes.” As for existing motors that lack a back-up battery function, the law prohibits any new door from being connected to a non-compliant motor. In other words, if you do nothing, there is no requirement to upgrade an existing garage door motor. If, you install a new door and connect it to an existing motor after July 1, 2019, that existing motor being connected to the new door must have back up battery function. Health & Safety Code Section 19891 carries a fine of $1000 per garage door opener installed which is not in compliance with section 19892. Written by Matt D. Ober Matt D. Ober Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner at Richardson|Ober|DeNichilo. Follow ← Older...
Megan’s Law Disclosure

Megan’s Law Disclosure

Access To Information About Registered Sex Offenders Many states have passed so called “Megan’s Laws” which provided limited public access to Registered Sex Offender information. California’s law, Penal Code 290 et seq., was passed in 1996. Under that statute, citizens could visit a law enforcement office and find out limited information about Registered Sex Offenders living in a certain area. Under PC 290.4, a person could call the Department of Justice and ask if a specific name was included in the list of Registered Sex Offenders. Expansion Of Megan’s Law  In 2005, California lawmakers passed an expansion of the law regarding sex offender disclosure. The law expanded the information available regarding the most serious sex offenders, and also requires that the information be available to the public on a web site established by the state Department of Justice. The web site is now operational, and that web address is www.meganslaw.ca.gov. New Disclosures For the most serious sex offenders, a substantial amount of information must be disclosed on this web site and therefore available to the general public: If a Registered Sex Offender’s offense was: Kidnapping, rape, aggravated sexual assault of a child, sodomy, child molestation by force or duress, oral copulation by force or upon a child, continuous child abuse, penetration by force or upon child, or if the offender has been determined a “Sexually Violent Predator”, then the state web site must reveal the following information about that person: “names and known aliases, photograph, physical description, including gender and race, date of birth, criminal history, the address at which the person resides, and any other information that the...
Handling Solar Equipment Installations

Handling Solar Equipment Installations

  Given the increased interest in home solar power generation, community associations will need to be prepared to process solar equipment applications. There is a myth that boards are powerless to control the placement of solar equipment in community associations. In reality, although, the statutory intent behind solar power is to promote green energy in individual residences, associations have the ability to regulate certain installations for the protection of the community, and in certain cases to shift the burden of maintenance over to the homeowner seeking to install solar equipment. In general, California law provides that a homeowners’ association may impose reasonable restrictions with respect to solar equipment, consistent with Civil Code Sections 714 and 714.1. A reasonable restriction is a restriction that does not “significantly” increase the cost of the system or “significantly” decrease its efficiency of specified performance. Civil Code Section 714(d)(1) defines “significantly” as follows: (A) For solar domestic water heating systems, significantly means an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed. In other words, with regards to solar water heating systems, the association may not impose restrictions that will decrease efficiency or increase installation costs by more than 20%. But it may impose certain reasonable restrictions depending upon the proposed location of the application. And with respect to common area or exclusive common area applications the association may do the following: Restrict the installation of solar energy systems installed in common areas, as defined in Section 4095, to those systems approved by...
Restricted by the Amended Open Meeting Act? Learn to Delegate

Restricted by the Amended Open Meeting Act? Learn to Delegate

Civil Code Section 4900 et. seq. (a.k.a., the Open Meeting Act) leaves very little breathing room to handle an association’s business outside of a properly noticed board meeting. Therefore, in order to deal with these new legal requirements boards must find efficient ways to handle business in between meetings. One such tool is delegation. The Open Meeting Act allows boards to delegate duties to other persons, including the association’s managing agent, officers and committees of the board. As a result, tasks that require action in between board meetings can and should be delegated to officers, executive committees, or management depending on the task and authority required. The delegation should be made in a board meeting and reflected in the minutes (or preferably in a board resolution) that documents the purpose, scope and duration of the delegation. When delegating to an executive committee of the board, make sure the number of directors does not comprise quorum. Create a charter for the executive committee that identifies such items as the types of matters to be decided by the committee, the length of the committee’s duration (i.e., for a specific project or ongoing). Also, the tasks or decisions delegated to each committee are not already delegated to someone else by contract or the association’s governing documents (or are prohibited from being delegated by state statute). Many boards may now be inclined to delegate more tasks or projects to management. For example, it may be more efficient to set or increase spending authority for managers so that day-to-day maintenance decisions can be made in between board meetings. Both the board and management should...
Need To Appoint Replacement Members To The Hoa Board?

Need To Appoint Replacement Members To The Hoa Board?

It should come as no great surprise that when filling vacancies on the board created by resigning or disqualified directors, the role of filling those vacancies is left to the remaining board members. California Corporations Code Section 7224 provides: “(a) Unless otherwise provided in the articles or bylaws and except for a vacancy created by the removal of a director, vacancies on the board may be filled by approval of the board.” This means that a vacant director seat is filled by the appointment of a member who is approved by a majority of the Board. But imagine you are the only director left? What then? Fortunately, the Corporations Code provides a solution. Of course, one must always first look to the association bylaws to see if another method of filling vacancies is provided. But in the great majority of situations, your bylaws will be consistent with the Corporations Code, or Corporations Code Section 7224 will be your guide. Corporations Code 7224 (a) tells us that where the number of directors remaining in office is less than a quorum, the vacancies may be filled by: The unanimous written consent of the directors then in office; The affirmative vote of a majority of the directors then in office; or, A sole remaining director. Thus, if you are the last director standing, you are in luck. You have the right (if not the obligation) to fill the vacancies left by the resigned or disqualified directors. Indeed, it is wise to do so if you are the remaining director. Proceeding to conduct association business on your own may leave you vulnerable to...
A Widespread Drought: Legal and Other Challenges of the Association

A Widespread Drought: Legal and Other Challenges of the Association

Water conservation is not new to California communities. But the declared statewide drought emergency coupled with water conservation legislation aimed specifically at community associations leaves no doubt that water conservation will remain in our vocabulary. And while the emergency requires short term action to conserve water, it also provides a rare opportunity to make long term reductions in our communities’ water consumption, provided your community can negotiate through the challenges presented by its Governing Documents and human nature. Engage your residents Community-wide change requires owner buy-in. Look for ways to involve the owners in the process. For example, form a water conservation committee tasked with surveying the Association’s water use and identifying ways to reduce water consumption. If owners are part of the solution, you are more likely to build community-wide acceptance of water reduction measures. Guide the committee with a charter that identifies specific tasks such as: Identify areas suitable for drought tolerant plants. Locate areas for irrigation modification or reduction. Identify areas of poor drainage or excessive water run-off. Amend rules or adopt policies to reduce water use Associations subject to local water restrictions will have to conform to watering schedules and other limitations. Unregulated communities can be proactive by voluntarily adopting policies to reduce community-wide water use. Policies should limit watering to certain times of the day or certain days of the week. For sub-metered communities, boards can work with their local water utility to determine acceptable per owner water use standards and adopt policies to limit water use per owner. A fine schedule or surcharge would serve to motivate owners to monitor their own water...
Managers Are Not Contractors

Managers Are Not Contractors

Governor Brown provided a degree of certainty to community association managers by signing Senate Bill (SB) 822 into law, excluding community association managers from the definition of construction consultants for purposes of Section 7026.1 of the Business and Professions Code (regarding construction contractors). SB 822 adds the following language to Section 7026.1 of the Business and Professions (B&P) Code relating to contractors: “(b) The term “contractor” or “consultant” does not include a common interest development manager, as defined in Section 11501, and a common interest development manager is not required to have a contractor’s license when performing management services, as defined in subdivision (d) of Section 11500.” By way of background, last year Section 7026.1 of the B&P Code was amended by the passage of AB 2237 mandating that a consultant overseeing home improvement construction projects have a contractor’s license. This amendment caused concern among some community association managers who were involved in common area maintenance and repair projects or bid compilation for their communities. If community association managers were considered “consultants,” then they too would have to have a contractor’s license under Section 7026.1. The Contractor’s State Licensing Board (CSLB) responded to the community manager concerns raised by clarifying that the intent of last year’s amendment (AB 2237) was not to include community association managers within the definition of a “consultant.” The CSLB accepted the proposed amendment to Section 7026.1, leading to its inclusion into SB 822. SB 822 does not become law until January 1, 2014. Therefore, community managers still should exercise caution in any construction project oversight, involvement or undertaking. Written by Matt D. Ober Matt...
Election Rules: Equal Access to Media and Common Area

Election Rules: Equal Access to Media and Common Area

As with many provisions of the Davis-Stirling Act, we look to judicial decisions interpreting the statutes for guidance in applying them in our own communities. With respect to community association voting and election laws, however, the Courts have steered clear of published decisions leaving us to rely upon our own interpretation or that of legal counsel, until now. In Wittenberg v. Beachwalk Homeowners Association the Court of Appeals gave us a welcome interpretation of two provisions of the elections law, albeit an interpretation that to many seems obvious. The Wittenberg v. Beachwalk Homeowners Association opinion leaves no doubt that Civil Code Section 5105 requires equal access to association media and common area. But the opinion provides an important message to association boards in community association election matters: when the board advocates for or against a particular election position, it is treated no differently than any individual member. Equal access is required. Despite the best intentions, boards sometimes overstep their authority when purporting to act in the best interest of the community. This is particularly the case when an association incurs significant expense to amend its governing documents. The board will be compelled to advocate in favor of passing the amendment through town halls, campaigning and letter writing urging support for the proposed amendment. But under the Beachwalk opinion, such action will trigger the obligation to allow a member with an opposing view the right to hold his or her own town hall or use of the association media to advocate their views. In Beachwalk, the board conducted three election campaigns over a period of time to amend the association’s...