Prepare Now to Welcome the Accessory Dwelling Unit into your Community Association

Prepare Now to Welcome the Accessory Dwelling Unit into your Community Association

Proactive rule adoption and enforcement will ease the growing pains of ADU/JADUs 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.  The ADU is a self-contained housing unit that provides for living, sleeping, cooking, and sanitation. ADUs are either attached to or detached from the primary residence but provide independent living facilities for its occupant. The junior ADU “JADU” are no more than a 500 square foot residence in a single-family home with an entrance from the main dwelling unit and an entrance to the outside.  The JADU may share a bathroom with the main residence. The ADU is cloaked with the good intentions to address 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). However, Civil Code Section 4751 Civil Code 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 ADU or JADU on a lot.  The Legislature’s original intent was to encourage construction of affordable accessory dwelling units that were owner occupied and used for rentals of 30 days or longer; however, such requirements did not make it into the final legislation. A community can impose reasonable restrictions Like similar laws aimed at forcing community associations to accept legislatively mandated modifications, Civil Code Section 4751, allows an association to enforce reasonable restrictions that do not unreasonably increase the cost to...
Assembly Bill 3182 (Ting) Means Less Independence for Community Associations if Governor Newsom Signs it Into Law

Assembly Bill 3182 (Ting) Means Less Independence for Community Associations if Governor Newsom Signs it Into Law

Assembly Member Ting from San Francisco authored Assembly Bill 3182. After multiple rounds of amendments, it was approved on September 1, 2020 by the California State Legislature and awaits the Governor’s signature before becoming law on January 1, 2021. The bill was promoted as a solution to help California’s growing housing shortage, but it is certain to create several problems for HOAs. AB 3182 will outlaw rental bans in HOAs. It creates a new Civil Code Section 4741 which voids rental limits below 25% of the members. Therefore, any governing documents with rental caps of less than 25%, will become unenforceable next year. HOAs will be permitted to amend their CC&Rs to add rental caps of 25% or more, provided the homeowners approve them. AB 3182 still allows HOAs to ban rentals of 30 days or less (aka short term or transient rentals), but the law prohibits “unreasonable” restrictions on rentals of homes, accessory dwelling units (ADUs), or junior accessory dwelling units (JADUs). AB 3182 does not define, or give examples, of what would be considered unreasonable. But, if the HOA is found to have an unreasonable restriction, it could be liable for a $1,000 civil penalty as well as attorney fees to the complaining party. There are many different rental requirements HOA memberships often approve by a majority vote. For example, a one-year minimum lease term, or a waiting period of one year before a new owner can rent a home, or the requirement that the tenant promise to abide by the HOA rules. Are any of these requirements “unreasonable?” We do not know. The issue of “unreasonably...
Seeking Associate Attorney

Seeking Associate Attorney

Richardson Ober DeNichilo LLP seeks a 3-5-year Associate Attorney to join our growing team. We are a highly regarded nationally and regionally recognized law firm focused on community association and real estate law and litigation, serving clients statewide with offices in Southern California.  We are committed to providing our clients with exceptional legal counsel and outstanding service. Job Description: We are looking for high caliber professionals who are committed to the highest levels of law practice and passionate about protecting the client’s interests. The ideal candidate is an excellent written and oral communicator who cares deeply about the work and is committed to growing their future toward partnership. Creativity and problem-solving skills are essential. The ideal candidate is also a personable and detail-oriented team player capable of handling matters with minimal day-to-day supervision. We operate on a collaborative team basis, but expect each attorney to oversee his or her own workload, daily calendar, and work assignments to ensure client needs are met.  Candidates must be able to handle multiple projects at the same time, operate at times under strict client-driven deadlines, and communicate regularly with partners, other associates, and clients on a broad range of legal topics. Position Requirements: Juris Doctorate degree from ABA-accredited law school 3-5 years of law firm or similar experience Proficiency in Word and Outlook Ability to think and act independently and with minimal supervision Outstanding listening, and both oral and written communication skills Professional demeanor Excellent legal research and analysis skills Ability to work at a pace necessary to manage and maintain active workload/caseload and to provide excellent service to clients Customer focus and...
COVID-19 and Assessments: The Impact of the Pandemic on Community Finances

COVID-19 and Assessments: The Impact of the Pandemic on Community Finances

By Matthew A. Gardner, Esq. The current pandemic is presenting similar warning signs that many community associations experienced during the housing crisis in 2007. With the ‘Stay at Home’ order in place to slow the spread of the virus, we recognize that people who cannot work have to start making hard decisions. As it relates to community funding through assessments, people will prioritize where their money is going and which bills to pay. A recent report from a financial services company focusing on real estate and mortgages confirmed what many had already suspected: the financial impact of a shut down economy would be felt months (if not years) after the ‘Stay at Home’ orders took effect. Results from May 2020 indicate that almost 4.5 million homeowners were late on mortgage payments. That surpasses the 3.6 million homeowners from the end of April, which then represented the largest number since 2015. There is some neutral news in those awful numbers. Those figures include homeowners who are in approved payment arrangements with their lenders. It also reflects decisions made by some lenders to allow individuals to defer payments and add months to their mortgages. We won’t know when or if any of those accounts will reverse into positive territory now that some states are re-opening, but we do know that we should prepare our communities for similar results. We know that homeowners tend to pay their mortgages before they pay their assessments. Therefore, communities who have not already experienced missed payments need to be ready for delinquencies. The national offices of the Community Associations Institute (CAI) have provided valuable reminders about...
State Releases New Guidance to Help Counties Plan for Reopening Based on Decisions by Local Public Health Officials

State Releases New Guidance to Help Counties Plan for Reopening Based on Decisions by Local Public Health Officials

By Robert M. DeNichilo, Esq., CCAL Last Friday, the California Department of Public Health issued new guidelines for reopening additional sectors of the economy. The new guidance contains two main points of interest to community associations including Fitness Facilities and Outdoor Recreation. While neither document specifically referenced HOAs, both documents provide guidance for reopening pool areas, and the Fitness Facility Guidance includes information for associations that have gyms. It is important to note that these go into effect no sooner than June 12, 2020, and only after county health officer approval following review of specific criteria related to the spread of coronavirus infection. While much of the California Department of Public Health Guidance is similar to what was previously issued by local counties, we now have specific guidance documents that local counties can adopt once the local health official approves reopening facilities, which include: Physical distancing guidelines Cleaning and disinfection protocols Considerations for communal restrooms and shower facilities, systems for cleaning and disinfecting furniture and equipment, Providing physical cues or guides (e.g., lane lines in the water or chairs and tables on the deck) Visual cues (e.g., tape on the decks, floors, or sidewalks) and signs to ensure that patrons and swimmers stay at least six feet apart from one another, both in and out of the water. The complete list of new guidance from the California department of public health are provided below: Campgrounds, RV Parks, and Outdoor Recreation (PDF) Hotels (PDF) Cardrooms, Satellite Wagering Facilities and Racetracks (PDF)  Family Entertainment Centers (PDF) Restaurants, Bars, and Wineries  (PDF) Fitness Facilities (PDF) Museums, Galleries, Zoos, and Aquariums (PDF) More information about the state’s COVID-19 guidance...
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...
Open for Business, Planning for a Return to a New Normal

Open for Business, Planning for a Return to a New Normal

By Matthew A. Gardner, Esq. After 6 weeks of working to flatten the curve, Californians are eager, yet anxious, to resume some sense of their former routines. Although Governor Newsom gave no firm timeline for an end to the “Stay at Home” Order, he acknowledged that it is a matter of days and not weeks before California starts to reopen. The CDC recommends three steps before businesses resume operation: Develop a Plan Implement Your Plan Maintain and Revise Your Plan Owners and boards who are ready can start planning a phased reopening for their communities. Boards should not reopen their communities until they have considered their basic needs, and have a plan in place to address essential elements. Below are a few ideas to help communities and boards begin the planning process. Staffing Management of High-Rise and Planned Development communities usually require staff to monitor services. Communities that provide onsite services may need to be sensitive to requests for a return of larger groups of employees/management/vendors onto the property. Both owners and employees should continue practicing appropriate social distancing to reduce transmission. Staggered employment shifts may be required to maintain safety for owners and employees. Since employees will most likely be required to wear masks for the short term, think about how you can provide adequate gear and accommodations. Priority Warmer weather means a desire to utilize outside courts, playgrounds, pools, and picnic areas. However, boards still have to balance safety of the owners and compliance with state law. Communities should work with their management companies and legal counsel to prioritize which amenities pose the lowest risk and highest...
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...
Don’t Let Covid-19 Stop Your Board Meeting, Electronic Meetings in Times of Pandemic

Don’t Let Covid-19 Stop Your Board Meeting, Electronic Meetings in Times of Pandemic

By Robert M. DeNichilo, Esq., CCAL With schools cancelling classes, organizations cancelling events, and today’s announcement from California Governor Gavin Newsom that California’s public health officials have issued a new policy on public gatherings to help stop the spread of the coronavirus (COVID-19), many boards are wondering if they can hold board meetings electronically. The answer is yes.If a board is concerned about meeting in person, meeting electronically is a good option. The California Corporations code allows board members to appear at meetings electronically. Board members can attend any board meeting electronically by telephone or video, so long as they can hear all other board members, and all other board members can hear all other directors not physically present at the meeting. If all directors attend an open meeting via electronic means, the notice of the meeting must identify at least one physical location where members can attend, and have at least one board member, or someone designated by the board, who shall be present at that location. This means, at least one speakerphone must be at the designated location so members can hear the meeting. This also allows for members to address the board during the homeowner forum portion of the meeting. Alternatively, there are many tools that can make an electronic meeting more efficient. Services such as Skype, Facetime, Google Hangouts, all offer free video conferencing tools where board members can see and hear each other. Other video services, including Zoom or GoToMeeting, even offer screen sharing so that those on the video conference can all see the same screen at the same time. Video conferences are...