Freedom of Speech and Assembly

Freedom of Speech and Assembly

Dear Mr. Richardson, Our board is considering banning informal meetings in common areas. To me, this sounds like a violation of the constitutional right of assembly, but are there laws in California that cover this? S.M. Escondido Dear Kelly, I have a question regarding the new state law supporting use of common facilities for political activities, and one on first amendment rights. The new law allows residents to use common facilities for political meetings without charge. May the HOA limit attendance to only residents, residents and guests according to its adopted policies, or may/must these programs be open to all? Can an HOA prohibit the display of political signage on front lawns? For example, must the HOA allow residents to have campaign signs? Are there limitations to this allowance like size, length of display time, etc., as established in the HOA rules and policies? B.S., Murrieta Dear S.M. and B.S., Two Davis-Stirling sections create First Amendment-type rights in HOAs – Civil Code Sections 4710 and 4515. Section 4710 protects the right of members to display noncommercial signs or banners in or on their separate interest. In a typical airspace condominium that would mean inside a window or sliding door, and in a planned development would allow such a sign or banner to be displayed anywhere within the lot. There is a size limit but no time limitation on display. Can the HOA stop a resident displaying an offensive racist or prurient sign or banner? No. However, under the current federal Fair Housing regulations (and the soon to be official California Fair Housing regulations), the HOA or any resident could...
Is This Exclusive Use?

Is This Exclusive Use?

Dear Mr. Richardson, If a club in the HOA wants a locked storage space, is it considered exclusive use? W.S., Escondido Dear W.S., Exclusive use common area is defined by Civil Code Section 4145 as a portion of common area dedicated by the CC&R’s to the use of a single owner or group of owners. So, the club storage space, unless it was mentioned in the CC&R’s, would ordinarily not be considered exclusive use, but is common area allocated by board permission. Thanks, Kelly Kelly, I have a problem with my HOA on who pays for plumbing backing up due to a rusty pipe outside my unit in the front. The pipe rusted out and backed up into my unit. The HOA says it’s my responsibility because the pipe is “exclusively” into my unit therefore I have to replace the pipe and fix my flooring at my expense. Any advice would be appreciated. D.W., Fair Oaks Dear D.W., Do the CC&R’s of your HOA designate pipes which only serve your unit to be “exclusive use common area?” Per the Dover Village v. Jennison appellate decision of 2010, unless the CC&R’s say otherwise, the pipes outside a unit are not considered exclusive use common area. Even if they are considered exclusive use, do the CC&R’s specifically say that repair of the pipes is your responsibility? Civil Code 4775(a)(3) states that, unless the CC&R’s say otherwise, exclusive use common areas are to be repaired by the HOA and maintained by the homeowner. In townhouse-style condominiums, in which much of the plumbing separately serves individual units, associations sometimes amend the CC&R’s to...
Can We Limit Dogs?

Can We Limit Dogs?

Hi Kelly,  Our HOA recently voted to update our CC&R’s. One section prohibits ownership of numerous breeds of dogs that the board considers dangerous. Since California law (Food and Agri. Code 31683) outlaws dog breed discrimination by counties and cities we are the only HOA in the region that bans ownership of certain dogs. Isn’t it illegal under Davis-Stirling to violate state law?  R.L., Rancho Santa Fe  Dear R.L., The Food and Agricultural Code section you mention applies to ordinances adopted by cities and counties, but not restrictions passed by common interest developments. So, when the association members voted to approve an amendment to the CC&R’s prohibiting certain dog breeds, the amendment would not violate that specific law. However, the Davis-Stirling Act does protect the right to have a “pet,” which per Civil Code 4715 includes dogs. Under that statute, an association must allow an owner to keep one pet on the property. The statute defines “pet” as including ”any…dog,” so if one takes the statute as written, it is the homeowner who chooses what breed of dog to have, not the HOA. Thanks for your question, Kelly Dear Mr. Richardson, How can HOAs handle large, aggressive service dogs that otherwise would be barred by CC&R’s? How can HOAs accommodate residents’ allergies or legitimate fears re: service animals? A.Y., West Los Angeles Dear A.Y., The Fair Housing Act requires associations to provide reasonable accommodations to residents with disabilities, and one of the most common accommodations allowing a service dog or support animal. However, if the dog creates a nuisance by damaging property or menacing other residents, that accommodation may...
Two Homeowners Want Out, One Wants In

Two Homeowners Want Out, One Wants In

Dear Kelly, Is there a way to get out of our three member HOA? Our home stands alone. The other two are connected. Thank you for your comment on this! K.N., Santa Barbara Dear K.N., I assume your association was established as a condominium project. Most likely the developer wanted to put more homes on the land than the zoning and Subdivision Map Act would allow. Condominiums are often a way to place more homes in a smaller space. Small associations are often pinched between the increasingly complex and burdensome Davis-Stirling Act and the cost of hiring professional management and legal counsel to navigate the Act. Most very small associations operate largely in disregard of the Act, typically more like a partnership than an association. If the three properties cannot meet the requirements of separate independent lots, it may be impossible to disband the association. It would certainly take agreement of all three owners and each of their mortgage lenders to make that change. Check with a real estate attorney in your area to find out if this is possible. Best, Kelly Dear Mr. Richardson, How can I resign from the HOA as an owner? J.K., Anaheim Dear J.K., A common interest development (aka “homeowners association”) automatically is joined when one becomes an owner in that development. That happens by virtue of the recorded covenants on the property which “run with the land” and are a contract binding the owner even though the owner never signed it. To exit the contract one must cease to own the land on which the CC&R’s are recorded, meaning the only way to...
We Like This Manager, But Are They Qualified?

We Like This Manager, But Are They Qualified?

Previous columns addressed management options and contracts. After selecting the desired type of management services, how can a board know if a manager prospect is qualified? California managers are unregulated, with no required license or minimum education. Rental managers must have real estate broker licenses, but not HOA managers. There is a wide range of qualification and experience in the field, and credentials indicate experience and commitment to the management profession. Certified Common Interest Development Business and Professions Code 11502 allows one to be called a “Certified Common Interest Development Manager” after 30 class hours in certain topics from a professional association of common interest development managers. Section 11504 requires managers to annually disclose whether they qualify as “Certified” and prohibits managers from falsely claiming to be certified. While certification is not mandatory, the disclosure is. The organizations educating and credentialing California managers are the Institute of Real Estate Management (“IREM”); California Association of Community Managers (“CACM”), Community Association Manager International Certification Board (“CAMICB”), and the Community Associations Institute (“CAI“). IREM IREM is a national organization, with about 18,000 manager members, offering education and credentials regarding all forms of property management. Although its managers are mostly non-residential, over 300 of its members in California hold a residential management credential called the “Accredited Residential Manager (ARM)”. The ARM requires 44 class hours in either rental property management or CID management. The ARM does not qualify for “Certified” status in California. CACM CACM is a California organization, founded in 1991 by a group of veteran managers. 1,618 active managers currently hold CACM’s primary credential, the Certified Community Association Manager (“CCAM”). The...
Association Management: Associations Have Options

Association Management: Associations Have Options

Choosing management assistance is one of a board’s most important decisions. Even the smallest associations will benefit from some form of professional management. What is a “Manager”? Managers carry out the association’s day to day operations, advising and providing information to the board and carrying out its policies and instructions regarding association property and funds. A manager may be an unpaid volunteer or may be paid. The paid manager may be an association employee, a consultant, or an employee of an outside company. In California, no license is needed to manage HOAs. Volunteer management Many associations use volunteers for their management functions. The motivation for volunteer management is primarily to save cost. In volunteer management, volunteers place themselves in the role of an unpaid manager – with all of its risks and no reward. Volunteer managed associations often find it difficult to find candidates for the board, since directors work so much harder when they are also managers.  Financial management This involves collecting assessments, paying bills, and preparing monthly and annual financial reports, disclosures, and budgets. A financial manager typically does not visit the property. Management companies often prefer financial management because it is more predictable and less prone to the extra work of managing the property. Some accountants also offer financial management services. Associations struggling with the cost of full association management may wish to consider at least financial management. Property management Property management involves responsibility for keeping up the condition of the buildings and grounds and may include routine inspections for architectural violations, maintenance items and repair needs. The plumbing leak on a Sunday afternoon and the...
Evaluating Management: Management Companies Respond

Evaluating Management: Management Companies Respond

Kelly, I am a HOA Board member, and our management company contract is coming up for renewal. We realized we have no formal way of evaluating how they are doing. I was wondering if in your dealings with HOAs you have come across a checklist or evaluation instrument. Thanks, B.T., Encinitas Dear B.T., I don’t have a standard checklist, because each association has different priorities and needs and evaluation of management should be customized to the uniqueness of each community. I relayed your question to a number of management company owners and officers, and I hope you find their responses helpful. Brian Davidoff, CEO of Ross Morgan & Company, said it is all about responsiveness: “Respond, respond, respond…service is all we offer!” David Brock PCAM, co-owner of Beven and Brock, said evaluating a management company might involve three major questions: “Are the managers credentialed, does the company provide transparency in financial reporting and potential conflicts, and is the company responsive and accessible?” Managers also evaluate prospective clients. “If I ask the board members who their landscaper is and no one knows (when they see them at a minimum weekly and sign their checks monthly), that tells me they are not as involved in their community’s governance as they should be” said Kelly Bunnell, PCAM, President of Bentley Community Management. Last year’s Community Associations Institute President John Hammersmith PCAM, CEO of Hammersmith Management in Colorado, said “I have always viewed the relationship between board and management as a partnership, and the evaluation process should be viewed the same way. It is important that both the Board and Management understand how each can...
2019 Bills Proposing New HOA Laws Are A Mixed Bag

2019 Bills Proposing New HOA Laws Are A Mixed Bag

This year Sacramento presents another spring season full of ideas for HOAs – some bad, some good, and some well-intentioned but needing revision. SB 323 Senate Bill 323 is a recycle of last year’s SB 1265, a bill vetoed by Governor Brown in September 2018. SB 323 would add burdensome new elements to the HOA election process and dictate to HOAs who could or could not serve as directors. The bill is as bad an idea this year as it was last year. As Governor Brown wrote while vetoing its predecessor, SB 323 “takes a once-size-fits-all(sic) approach, but not all homeowner associations are alike. If changes to an election process are needed, they should be resolved by the members of that specific community.” Associations should set their board eligibility standards, not Sacramento. SB 652 SB 652 addresses the conflict between architectural conformity and religious observance. Does a Jewish Mezuzah or Christian cross violate rules banning alteration of doorways? SB 652 would add a new Civil Code 4706, prohibiting associations from limiting or prohibiting display of religious items on entry doors of a member’s residence. There is no limitation on size, number, or appearance of doorway decorations, so long as they are religious. Perhaps some reasonable limit could be stated. Coauthored by sixteen legislators, it awaits committee assignment. SB 434 SB 434, authored by Senator Archuleta of Southeastern L.A. County, proposes to add a new Civil Code 5382. The proposed statute would require managing agents to produce the association’s records and property (manuals, transponders and keys, for example) within a certain time after termination and/or association request. Managers could not...
Why Governing Documents Matter

Why Governing Documents Matter

Governing documents are critical for HOA communities and are literally the legal glue which holds the association together. Civil Code Section 4150 defines “governing documents” as articles of incorporation, CC&Rs, bylaws, and operating rules, but I think subdivision maps and condominium plans also should be regarded as governing documents. Each has a distinct purpose and function, and every HOA member should have copies. Subdivision map and condominium plan This document breaks up land into separate pieces of land or airspace sold to homeowners in planned development (“lots”) or condominium (“units”) projects. This document is recorded (i.e. filed) with the County Recorder, is easily retrieved, and defines the “common area” as well as the “separate interest” (i.e., the lot or unit). Sometimes it also delineates exclusive use common areas or maintenance easement areas. It establishes the real estate interests owned, so any amendment requires agreement of 100% of association members and their mortgage holders, and consequently amendment is highly unlikely. Articles of incorporation Articles of Incorporation establish the legal “person” of the association. Filed with the Secretary of State, this document can be retrieved from that office. Older Articles sometimes contain important information about limits on the association or board’s powers. The Articles list the association’s legal name and can be amended by membership vote, although amending is rarely necessary. Check the association’s corporate status at https://businesssearch.sos.ca.gov. CC&Rs The CC&Rs document is recorded (amendments also must be recorded), and therefore is also a public document. Associations often use unrecorded, unofficial copies, but official copies can be retrieved from the County Recorder. CC&Rs are a long contract automatically binding all owners,...