QUESTION: What responsibility does an association have if a dog they know has a history of aggressive behavior attacks and injures someone? Can the victim sue the HOA for damages? What can a board do to deal with animals that have shown aggressive behavior so the HOA is not liable?
RESPONSE: Yes, an association can be sued if it fails to protect its members against a known foreseeable harm. (Frances T. v. Village Green.)
To minimize potential liability, whenever a board receives reports of an aggressive dog, it should call the owner to a hearing. In addition to a warning and/or fine, the board should require the dog be kept on a leash and muzzled at all times whenever it is in the common areas.
RECOMMENDATION: To make sure the owner understands the seriousness of the situation, have your association’s legal counsel send a letter laying out the requirements and threatening to sue the owner if they are not followed.
FOR GOING OVER 3 MINUTES
QUESTION: Our board is threatening to charge homeowners with a misdemeanor if they go over the 3-minute limit in comment time. They quoted the penal code. Can they do that?
ANSWER: Boards cannot charge someone with a misdemeanor. It is outside their jurisdiction. A misdemeanor is a criminal offense levied by a governmental authority and punishable by a fine and/or incarceration in a local county jail. (Penal Code §647.)
At most, a board can adopt a rule that could result in a hearing and a penalty if the rule is violated. It's unlikely a board would fine someone for running over on their 3-minute open forum time. I can see it, though, for someone who tries to derail a board meeting by refusing to sit down and stop talking. Disruptive behavior can result in someone being ejected from a meeting and fined (following a properly noticed hearing).
QUESTION: We have a board that decided they wanted 2-year staggered terms. The bylaws established one-year terms. The board does not want to spend money amending their bylaws. Can they simply amend their election rules?
ANSWER: No, it requires a bylaw amendment. Two-year staggered terms are preferred because it provides continuity for boards. Simply changing election rules is not sufficient. Except for the crazy SB 323 requirements, whenever there is a conflict between the bylaws and the election rules, the bylaws control. In a worst case scenario, a homeowner could sue the association in small claims court and have an election overturned if a board unilaterally adopts two-year terms.
RECOMMENDATION: With all the changes required by SB 323, now would be a good time to restate your bylaws.
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Kudos #1. Thanks for your wonderful and informative newsletter. -Thom B.
Kudos #2. Thank you for the newsletter and for the tremendous effort invested in clarifying what the implementation of SB 323 will mean for all of us. -Denyse B.
Kudos #3. Thank you for all the newsletter information about legislative developments. -John W
Kudos #4. Your newsletter is quite informative and inspires a lot of inquiry. -Shelley G.
Kudos #5. Your website is so great! Thanks for all you do. -Victoria
New Laws #1. As a board, how can we get information about pending legislation before it becomes law? -Laurel S.
RESPONSE: Well-informed board members are the best board members. The "new laws" section of our website tracks bills during each legislative session and our newsletter periodically provides updates on critical bills. My partner, Nate McGuire, is Chair of CAI-CLAC, which lobbies for common sense legislation and opposes bad legislation. CAI-CLAC provides regular updates via CLAC-TRAC E-News subscription. Their Hot Bills page issues "Calls to Action" for support on critical bills. You can also follow CAI-CLAC on Facebook, Twitter, and LinkedIn. Everyone needs to get involved if we hope to stop Marjorie Murray's destructive bills.
New Laws #2. The article on adding "veteran or military status" to the front of our CC&Rs didn't include the recent requirement to also add "victim of abuse status" which you mentioned in an earlier newsletter. Is this no longer required? -Sue O.
RESPONSE: Victim abuse status did not pass. I thought it had but was misinformed. So, the only change required on the cover page is to add “veteran or military status” to the list of things CC&Rs can’t discriminate against.
Nightmare Bill #1. Could a member of the association be paid to serve as inspector of election? -Denyse B.
RESPONSE: There is nothing in SB 323 that prevents an association from paying a homeowner to be the inspector of elections. However, once paid, the homeowner is no longer a volunteer and would not be covered by the association's insurance in the event there is litigation over the election. If the association is going to pay someone to be an inspector, it should hire a company that handles elections professionally.
Nightmare Bill #2. Under the new law, can the management company do all the paperwork and mailings, and hire the inspector only for the tabulation? -James S.
RESPONSE: Management companies (under contract to manage the association) can facilitate an election under the direction of an independent inspector by sending out the notice of election, requesting nominations, sending out ballots and election rules, and receiving ballot envelopes addressed to the inspector.
Custody of Ballots. Per the statute, sealed ballots, signed voter envelopes, the voter list, proxies, and candidate registration list must be in the custody of the inspector or at a location designated by the inspector until after the tabulation of the vote, and until the time allowed for challenging the election has expired, at which time custody is transferred to the association.
Tabulating Votes. The only things a management company cannot do is verify signatures and count and tabulate votes. That must be done by independent third parties.
Nightmare Bill #3. When a resident does not follow our CC&Rs, should that individual be considered for a board position? What if they are delinquent in their assessments? -S. Cohen
RESPONSE: Marjorie Murray's CCHAL decided that scofflaws can serve on boards. If the person is delinquent in paying their assessments and has entered into a payment plan, they can serve on the board. Unfortunately, SB 323 does not require the delinquent owner abide by the payment plan, only that they entered into one. Once on the board, they can abandon the plan--another example of poor drafting by CCHAL.
Nightmare Bill #4. Why just blame Senator Wieckowski for SB-323? Although he introduced it, a majority of legislators passed it, along with other ill-conceived and confusing legislation.
RESPONSE: Blame can be placed with Marjorie Murray's organization. They created this burdensome and poorly drafted bill and put it in Senator Wieckowski's hands and then convinced him it would somehow help homeowners. CCHAL is imposing its will on 9 million homeowners. A fundamental concept in the Declaration of Independence is seeking the consent of the governed. CCHAL did not seek the consent of homeowners when they cobbled together SB 323.
Nightmare Bill #5. Where does it say that if we want to be nominated we have to submit 200 words about our personal life, work, experience? Is this a normal practice? -Gina K.
RESPONSE: The provision is probably in your election rules. It is fairly common to allow candidates to write something about themselves. If you choose not to submit anything, election materials will simply list your name as a candidate and nothing more.
Nightmare Bill #6. What was the reason for only allowing 6,000-unit associations to use election by acclamation? There can't be very many HOAs that qualify. That smells like a back room special interest exemption for somebody. It's nuts. The HOAs that have the most trouble finding candidates are the smaller and medium size HOAs. An HOA with 6,000 units should not have any difficulty finding five people to serve on a board. -John W.
RESPONSE: You're right, it doesn't make any sense. All associations should be allowed to use election by acclamation when the number of candidates is less than or equal to the number of open seats. It avoids the unnecessary expense of mailing ballots, struggling to meet quorum, and then holding a meeting to open and count ballots when everyone already knows the outcome. Unfortunately, Marjorie Murray's organization is against simplifying elections and reducing expenses. For some reason, an exception was made for associations with at least 6,000-units.
ADUs #1. You didn't answer the question posed last week by Gary S:
"When I bought a home in my association I agreed to the CC&Rs and rules in place at that time. If the state changes those rules doesn’t that invalidate the contractual obligations that I have to follow them? I didn’t agree to these changed rules at the time of purchase. I never would have bought my house under these rules. We are no longer in charge of our own investments." -Lisa B.
RESPONSE: The legislature routinely overrides HOA CC&Rs, as they did with SB 222, which invalidates any restrictions that discriminate against veterans or military status. However, the ADU law may fall into a different category because of its impact on property values. Some equate it to a "taking" of an owners' property values. Because of that, one association has expressed an interest in mounting a legal challenge, i.e., suing the State of California, to stop fundamentally changing the character of their association by forcing ADUs into their development.
As one attorney recently noted, the ADU law upends the entire CEQA process if a city originally approved a subdivision based in part upon a traffic study that the subdivision would add X vehicles to the adjacent roadways, and now every garage in the development could become a new residence with another vehicle. (CEQA is the California Environmental Quality Act, which requires agencies to identify the environmental impacts of their actions and to avoid or mitigate those impacts.)
Many agencies, in conjunction with input from police and fire departments regarding emergency services, mandate that CC&Rs require garages be used for parking. If ADUs force vehicles onto streets plus increase the number of vehicles, it could impact emergency vehicle access to residences. The negative consequences of ADUs could be substantial.
ADUs #2. Our HOA is in an isolated area with its own water system that has limited water resources and has required members to reduce usage during the recent drought years. If additional units were built on individual lots, the demand would exceed the water company's ability to meet the demand. Are there any special considerations that allow us to limit ADUs? -Heidi C.
RESPONSE: If water is in limited supply, it could preclude the construction of ADUs in your community. You should raise this with your local agency so they don't issue ADU permits.
ADUs #3. I realize the ADU bill uses the term "planned development." Are you sure that CC&Rs saying our townhouse development is a condominium association controls? -Lissa C.
RESPONSE: Because the bill specifically references planned developments and and additionally refers to lots zoned for single-family residential use, condominium associations are safe. If your CC&Rs structured your townhouses as condominiums, the ADU bill does not apply. However, that will not stop owners from trying to convert their garages into ADUs, nor will it prevent a local agency from mistakenly issuing permits. Boards of directors of townhouse condominium associations will need to notify members they cannot convert their garages into ADUs, and then be vigilant to make sure no one tries to sneak one in.
ADUs #4. The senior mobile home park for which I work has a maximum 70% coverage of lot use requirement. Does this new law regarding ADUs override these restrictions? -Mary W.
RESPONSE: Yes, it does. In January, your should check with your local agency to see if they deem your park eligible for ADUs.
ADUs #5. We have a community of manufactured homes where each homeowner owns the land upon which their home sits, along with a interest in the common area. Insurance companies identify our community as a mobilehome park. Is the ADU law applicable to manufactured home communities? -Victoria
RESPONSE: The community you describe is a planned development, which means the ADU law applies. It doesn't matter what your insurance company calls you, it's the legal structure that matters. Unless your local agency decides differently, ADUs will be allowed in your community.
ADUs #6. We have a lift station that was designed to accommodate 124 single family homes, the number of homes in our development. Additional sewage would cause stress on our system and put it in jeopardy of failure. Can we deny ADUs because of this issue? -Myrna W.
RESPONSE: You should make sure your local agency knows about your sewage limitations so they don’t issue any ADU permits. Then, make sure your members know they cannot convert garages or build ADUs on their lots.
ADUs #7. I manage 5 mobile home parks, We have setback spacing for safety reasons due to combustible items. Will smaller ADU setbacks control? -Shelley G.
RESPONSE: Unfortunately, yes. The new ADU laws require local agencies to prepare relaxed regulations expediting the approval and construction of ADUs. It includes reduced setback requirements. Hopefully, your local building department will take safety into consideration and decide that ADUs cannot be built in your parks. Talk to them and make sure they know about your safety concerns.
Day Care #1. This bill is also ill-conceived. It not only causes nuisance noise for the poor owners who have to live next to a family day care, it imposes excessive expense for water usage that all homeowners pay for, and excessive traffic coming into and out of the complex that is prohibited for other at-home businesses. Why aren't the HOA advocacy organizations looking out for our best interests? -Paul
RESPONSE: Some bills cannot be stopped. Legislators stampede to approve them because they think it supports the greater good, regardless of any negative consequences that result.
Day Care #2. I beg to differ with your characterization of the new law permitting an increase in the number of children permitted in daytime child care businesses in HOAs. You state that SB 234 “does some good.”
For whom? The business owner making money intruding on their neighbors with the noise and traffic from fourteen parents dropping off children in a neighborhood with 30 ft wide streets, no driveways and no parking spaces?
How on earth is it not a disruption of the enjoyment of my home to have 14 noisy toddlers running around the.backyard of a tiny lot (15 x 30) next door for 10 hours a day, 5 times a week only eight feet from my back door??
The limit on eight children was bad enough in my opinion but a necessary accommodation to the dismal state of affordable child care availability. Fourteen is too much. Twenty eight car trips a day to one unit? Yikes! -Michele J.
RESPONSE: You raise valid concerns. Unfortunately, the legislature seems to think they can keep piling more and more burdens on associations. At some point, people will decide they've had enough and move to surrounding states where they have some modicum of control over their property and lives. California is a poorly managed state. I don't see that changing any time soon.
Defect Claims. Making it easier for HOAs to file construction defect lawsuits is just another barrier to creating new housing supply in California....just one more reason to think twice before moving forward with a housing project. -Scott M.
Elevated Structures. You clarified in last newsletter only a condominium is affected by the new law requiring inspection of elevated structures. I live in an HOA with attached townhomes on individual lots. I am told by management that because our units are attached, the new law applies. Please confirm. -Lea B.
RESPONSE. If each townhouse is on its own lot, you are a planned development. That means balconies are not common area elements. Unless your governing documents state otherwise, each townhouse owner is responsible for maintaining, repairing and replacing his/her own balcony, which means SB 326 does not apply.
Boards can contact us for friendly, professional advice.
Adrian J. Adams, Esq.
Founder & Managing Partner