One Man’s Trash is Another Man’s Treasure – Part Two of Four

One Man’s Trash is Another Man’s Treasure – Part Two of Four

This four-part series outlines an association’s legal obligations when dealing with unchaperoned personal property – which may include items that appear to be trash, but could be of value to someone. Associations must take care to identify the character of property left in common area due to potential liability if certain precautions are not taken. This series of articles is not intended as legal advice, but can serve as a general guide to dealing with unchaperoned personal property. As always, we suggest consulting with an attorney when handling legal matters. In Part One of the series, we discussed the importance of identifying the character of personal property and the general legal standards for doing so. In Part Two of the series, we will outline the process for handling property which has been identified as “abandoned” property. As a reminder, personal property may generally be deemed “abandoned” if it appears that it has been left behind on the premises after a resident (whether tenant or member) has terminated their residency and vacated the premises. The “Abandoned Property” Statutory Procedure: The Association cannot simply dispose of abandoned personal property. California Civil Code section 1986 states that the association may either keep the abandoned property onsite or move it to a storage facility until the required waiting period prior to disposal. The association will be deemed responsible for keeping the property reasonably safe until it has completed the prescribed statutory procedure. It is thus imperative that an association maintain its records of following the procedures mandated by the Civil Code to protect itself from claims of damage. California Civil Code section 1983...
One Man’s Trash Is Another Man’s Treasure – Part One of Four

One Man’s Trash Is Another Man’s Treasure – Part One of Four

Community Associations Must Exercise Caution When Removing Personal Property in Common Area Due to Potential Legal Exposure As children, most of us are taught to clean up after ourselves and to respect our living environments, as well as the living environments of others. Unfortunately, many people have forgotten – or sometimes disregard – those lessons.  Residents, tenants, and visitors sometimes leave trash, store belongings, and abandon bulky-items where it may be most convenient for them, including in community association common area. This occurs when a resident leaves items abandoned in storage units, garages, or patios and balconies. Sometimes it is obvious that the property has been abandoned, however, the situation can sometimes be less obvious. We have seen lawsuits where trespassers (with no known connection to the community) have deposited property in association common area and thereafter claimed that the association destroyed or damaged it because such property was not handled properly. Disposal of personal property from association common areas is not simply a matter of providing notice and then removing it. It can be fraught with risks and results in liability if certain precautions are not taken. Community associations must be aware that they may have statutory obligations relating to the disposal of personal property. It is the intent of this series to outline an association’s legal obligations when dealing with unsupervised personal  property in common area– which may include items that appear to be trash, but could be of value to someone. Determining the Character of the Property: Identifying It As Abandoned While the obligations of community associations are typically guided by an Association’s Governing Documents and...
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...
Aging America: Drawing a Line Between Community Living and Assisted Living

Aging America: Drawing a Line Between Community Living and Assisted Living

Many of today’s seniors believe they can forego assisted-living centers and age in place instead. That’s something community associations can’t ignore. Roughly 40 million Americans, or 13 percent of the population, are 65 or older. By 2030, the U.S. Census Bureau projects that number will rise to 72 million, or 20 percent of the population. Community association leaders need to take note of these numbers because seniors increasingly are choosing to remain in their homes rather than move to adult-care or assisted-living facilities. In addition, the supply of family caregivers, who provide the majority of long-term services and support, is unlikely to keep pace with future demand, according to AARP. As people live well into their 80s and 90s, that will put increased pressures, obligations and potential liabilities on associations. The following article contains information and perspectives from community association stakeholders who have handled aging-in-place concerns professionally and personally. If your association hasn’t started talking about how it will handle its aging residents, it’s time. Aging residents have specialized needs and present unique challenges that board members and community managers aren’t trained or necessarily skilled to handle. Association governing documents are being tested by the aging population too. Hoarding, disorientation and physical limitations that prevent access to common areas are just some of the problems association leaders increasingly will face. These issues pose a threat to the safety and welfare of the individual resident, but they also present risks for the community and its other residents. Managers and board members must be mindful of how to recognize and respond to these issues without unnecessarily assuming liability or invading an...
A Proactive Approach to Controlling Short-Term Rentals in Your Community

A Proactive Approach to Controlling Short-Term Rentals in Your Community

Whether through the Courts, the Legislature or human nature, from drought restrictions to email prohibitions, community associations are often forced to adapt quickly to change in order to govern effectively. In the case of the short-term rental craze, this change seems harder to tackle. Indeed, the short-term rental market is having an increasing impact on community associations. Residents often complain that short-term renters – who are transient by definition – do not treat association common areas with the same regard as resident owners. Most are unaware of association rules and contribute to mounting security, trash removal, parking, and noise related concerns, not to mention the increased common area expenses that come with the increased burden of handling short-term renters. On an emotional level, residents are often uncomfortable with the fact that their neighborhoods are filled with unfamiliar faces, many of whom are on-site for only a few days at a time. The idea of transient rentals in our communities seems at odds with the objective of maintaining the residential character of our neighborhoods. We all have seen provisions in our communities’ documents that prohibit “non-residential” use of a unit, or that restrict use of property for “private single-family residential purposes.” While many associations have adjusted to an increase in tenant occupied residences in their communities, this “business” use of a residence, where unfamiliar groups of people share the common area and facilities for brief periods of time, never to be seen again, is incompatible with everything we’ve come to know and understand about community associations. The short-term use of a residence only adds to the resentment towards tenants who...
Improve Your Board Meetings: Drafting a Code of Conduct for the Board of Directors

Improve Your Board Meetings: Drafting a Code of Conduct for the Board of Directors

A common frustration for managers and association boards of directors is dealing with issues that arise out of conflict with individual board members. At some point we have all heard of the board member who is hostile, disagreeable or the proverbial “loose cannon.” Other boards have struggled with how to rein in the director who consistently advances his or her own agenda without regard to the best interests of the association. Finally, there are directors elected, for whatever reason, who feel compelled to reveal confidential information about the association to third parties. Unfortunately, the Corporations Code does not yet contain a provision allowing the board to remove a director for behaving badly. The slap on the wrist that follows improper disclosure or misconduct does little to undo the damage already done. There are, however, viable options available to managers and boards to address misconduct. In most cases, the most direct option to control improper behavior is censure. There is no more effective method of controlling improper behavior than by confrontation by one’s own peers. Like any disciplinary hearing, the director should be advised of the improper conduct committed and be provided with an opportunity to explain his or her actions. The director should also be cautioned that continued misconduct will result in further disciplinary action by the board to protect the association and could include obtaining a court order seeking to enjoin their conduct detrimental to the association. If the conduct committed is improper disclosure of confidential information, the best option is to exclude that board member from executive session meetings, or from receiving executive session material or both....
Community Association Fair Housing Update

Community Association Fair Housing Update

The Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race; color; religion; sex; national origin; familial status; or disability. In the context of Disability and Community Associations, instead of enforcing the rules and regulations equally against all residents, the FHA allows a community to “discriminate” so to speak, by making an exception to a rule to accommodate a disabled resident. It isn’t always about service animals or comfort pets; it’s about providing all residents with an equal opportunity to use and enjoy their housing. Perhaps more than ever before, fair housing regulations are impacting community associations as to how they govern, address common area modification requests, and enforce their rules. Communities are looking for ways to accommodate their residents who, for a variety of reasons, need to modify a common area or need an exception to a community rule to have equal use of their residence. A qualified resident with a disability is allowed a reasonable exception to a rule, or permission to make a reasonable modification to common areas at her expense i.e.; a reasonable accommodation. For some time now, the California Department of Fair Employment and Housing (DFEH) has been working on changes to the California Code of Regulations covering the Fair Employment and Housing Act. Most recently, on June 22, 2018, DFEH issued a Notice of Modifications which will likely impact how community associations address resident requests for reasonable accommodations. While the proposed modifications are being developed, it is our hope that the modifications clearly address such critical issues as 1) who pays for the modifications; 2) restoring the property after the...
Electrifying California: The Role of California HOAs in Reducing Greenhouse Gases

Electrifying California: The Role of California HOAs in Reducing Greenhouse Gases

Under the Global Warming Solutions Act of 1996, California law requires the State to reduce its greenhouse gas emissions by at least 80% by 2050. Transportation is the leading contributor to California’s greenhouse gas emissions, so the state has aggressively adopted policies to incentivize Californians to use alternative energy vehicles. State incentives for such vehicles include allowing drivers of such vehicles to use carpool freeway lanes when driving alone, and generous tax credits to purchasers of new alternative energy vehicles. Unsurprisingly, alternative energy vehicles are quickly gaining popularity in the Golden State. While state incentives began with mild hybrid cars such as the Toyota Prius, technology has progressed substantially to the point where California incentives now focus primarily on plug-in hybrid electric vehicles (PHEVs) like the Chevrolet Volt and battery electric vehicles (BEVs) like the Tesla Model 3. PHEVs and BEVS can be plugged into power outlets and run solely on electricity rather than gasoline. While most PHEVs and BEVs can be plugged into standard 120-volt wall outlets, such charging takes a substantial amount of time. Thus, many BEV and PHEV owners use special 208/240-volt electric power stations to charge more quickly. These charging stations typically require special wiring and professional installation.  The impact of all this on California common interest developments (aka “HOAs”) is that associations will soon be fielding increasing requests from residents to install specialized car-charging stations — including requests to install charging stations in common area garages and exclusive use parking spaces. California Law In keeping with the legal requirement that California reduce its greenhouse gas emissions, the California Legislature has adopted policies making it...