Pool Season Has Arrived, But the Pool Rules Have Changed

Pool Season Has Arrived, But the Pool Rules Have Changed

By Matt D. Ober, Esq., CCAL The County of Los Angeles Department of Public Health Revised Order was issued on May 26, 2020. Section 7 h) excludes HOA pools from closure order. The following article has been updated as of May 26, 2020 with the latest information from the CDC. The following guidelines respond to the many questions Richardson|Ober|DeNichilo has received from community associations throughout the state about pool use and potential liability in light of the existing (and sometimes inconsistent) COVID-19 Orders in place. ASSESSING RISK A community’s response to the Pandemic is not a one size fits all.  Every board must assess the risk to their particular community. Whether to close or open a particular common area or community facility depends on the type of facility and the needs of the community. Like the saying goes, “Anyone can sue anyone for anything.”  What is clear is that a board must act to protect the community from known or foreseeable risks and take action in the best interests of the Association as a whole, given the facts presented and in reliance upon experts and counsel.  It does this by closing down facilities, or by disclosing to residents known conditions and how residents can take action to protect themselves. Yes, there is concern about liability if someone contracts COVID-19 after the board opens up the pool. But, it would seem difficult, if not impossible, for anyone to be able to establish that they contracted COVID-19 from the association pool or anything the board did or did not do regarding pool use. For example, someone walking to the pool may have walked...
Addressing Mental Illness In Our Community Associations

Addressing Mental Illness In Our Community Associations

This article is reprinted from CAI-GLAC’s Focus May-June 2020 Issue Addressing Mental Illness In Our Community Associations May is Mental Health Awareness Month, and it is impossible to ignore the additional impact on our communities from the COVID-19 Pandemic. Under normal circumstances, we are impacted by the steady rise in occupancy rates in multi-unit residential communities. The challenges of individuals living in relatively close proximity to one another under rules enforced by lay leaders has its stress points that require each of us to develop a higher level of tolerance and a degree of civility. But the physical, mental, emotional and economic impact brought about by Stay at Home orders, closed businesses and layoffs, has turned many communities into pressure cookers. In times like these, the phrase “we are all in this together” does little to assist a community manager or volunteer director in dealing with a resident suffering from mental illness. Typically, the foundation of the community association model is to provide residents the tools they need to take care of themselves. But as more and more residents chose to stay in their homes as they age, we can’t ignore those living amongst us who can no longer take care of themselves, or lack the ability to control their behavior in the common area. Add to this the blurred lines between fair housing laws and private residential communities and we find ourselves at a place and time where many residents have specialized needs and present unique challenges that board members and community managers aren’t trained or necessarily skilled to handle. Adjusting to the needs of mental illness in community associations...
Responding to COVID- 19:  How to Manage Your Community While Reassuring Your Residents

Responding to COVID- 19: How to Manage Your Community While Reassuring Your Residents

By Matt D. Ober, Esq., CCAL It’s here. The “Natural Disaster” few saw coming and fewer still think they are prepared to handle.  Yesterday, the California Department of Public Health issued a statement that the gathering of 250 people or more should be postponed or cancelled. Smaller gatherings in facilities that do not allow for “social distancing” of six feet should be cancelled or postponed. Gatherings of people at high risk of illness should be limited to no more than 10 people. While our communities may have fire, flood and earthquake disaster preparedness plans in place, it is unlikely that many of us anticipated a virus would shut down our community or our country.  So how does a community association continue to govern in the face of such uncertainty, if not outright panic?  Rest assured you have trained for this. Whether a planned development, large scale, high-rise or condominium community, community association managers and boards have the skills to keep their communities operating while reassuring residents. You must use the tools you have – exercise business judgment, rely upon experts, provide full and fair disclosure, and perhaps above all, COMMUNICATE! Let residents know what you know. Tell residents what you or the board are doing and why, and reassure them that the association is taking every advisable precaution to do its part. Maintaining a sense of normalcy and avoiding overreaction, while taking advised precautions is the best way to reassure the community in these uneasy times. As in all decisions a board of directors must make, the business judgment rule requires that the directors act in good faith, in...
California Opens the Door to Accessory Dwelling Units in Planned Development Communities with Assembly Bill 670

California Opens the Door to Accessory Dwelling Units in Planned Development Communities with Assembly Bill 670

The California Legislature has paved the way for the “granny flat” or “mother-in-law unit” in your community.  Formally termed the Accessory Dwelling Unit (ADU) this ever-popular form of housing is a legal and regulatory term for a secondary house that shares the building lot of a larger, primary house.  ADUs are either attached to or detached from the primary dwelling unit but provide independent living facilities for the resident.  Unlike ADUs, JADUs are no more than 500 square foot bedrooms in a single-family home with an entrance from the main dwelling unit and an entrance to the outside.  They need not have a bathroom. Cloaked with the good intentions of addressing California’s extreme housing shortage and increasing housing density, and modeled after similar laws addressing solar energy systems, electric vehicle charging stations, drought tolerant plants and artificial turf, Assembly Bill 670 adds Section 4751 to the Civil Code which renders void or unenforceable any CC&Rs provision or deed restriction in a planned development that either effectively prohibits or unreasonably restricts the installation of an accessory dwelling unit (ADU) or junior accessory dwelling unit (JADU) on a lot. Civil Code Section 4751, however, does allow, an association to enforce reasonable restrictions that do not unreasonably increase the cost to construct or effectively prohibit construction of an ADU.  Any ADU must also meet the requirements of Government Code 65852.2 and 65852.22 (governing ADU). Many in opposition to AB 670 view it as unnecessary micromanagement of private planned residential communities that negatively impacts an association’s ability to regulate such daily burdens as parking, traffic, noise and other characteristics of overcrowded communities.  Nevertheless,...
Comprehensive Community Association Elections Reform Legislation Imposes Strict Standards for Elections and Board Qualifications

Comprehensive Community Association Elections Reform Legislation Imposes Strict Standards for Elections and Board Qualifications

Governor Newsom has signed into law perhaps the most sweeping legislation targeting a community association’s ability to self-govern.  Senate Bills 323 and 754 together present the greatest legislative change in association elections since the two-envelope secret written ballot procedures were first imposed upon community associations.  The changes that most impact community associations are as follows: Timing: The legislation amends Civil Code § 5100 (a) to require director elections be held at the end of each director’s expiring term and at least every four years. Vote by Acclamation: For large communities (of 6,000 or more separate interests) and where the number of nominees is equal to or less than the number of board seats to be filled, the legislation allows for an association to conduct a director election vote by acclamation. Mandated Candidate Qualifications: The legislation further amends Civil Code § § 5100 and 5105 (b) mandating that elections rules include the following specified candidate qualifications: 1) that the candidate be an association member; and, 2) that a corporate or trust property owner be represented by the appointment of a natural person. Limited Candidate Disqualification SB 323 adds Civil Code § Subsection 5105 (c) allowing an association, through election rules or bylaws only, to disqualify a candidate 1) with a prior criminal conviction that prevents the association from acquiring a fidelity bond or would result in the termination of the associations existing fidelity bond; 2) whose election would result in joint owners of a separate interest serving on the board at the same time; or, 3) who has been a member for less than one (1) year.   New Limitations...
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 Entries Next Entries...
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...