Common Assessment Magazine January February March 2012

Common SPRING 2012

The professional provider of education, advocacy and resources for Community Associations

2012 L e g a l U p d at e Cases addressing GOVERNING DOCUMENTS page 15 WHAT did you say? 26 When is exclusive use common area NOT SO EXCLUSIVE? page 34

COMMON ASSESSMENT MAGAZINE • SPRING 2012

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FEBRUARY Trade Show – DoubleTree Hotel Mission Valley – Legal Update 2012 Essentials of Community Association Volunteer Leadership – Courtyard by Marriott MARCH Bowling Tournament Mira Mesa Bowl Morning Educational Program: Bidding & Finance Courtyard by Marriott Morning Educational Program: Bidding & Finance Sheraton Carlsbad

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15-16 27

2-5 11

CID Law Course – Courtyard

by Marriott

APRIL Legislative Day in the Capitol – Sacramento, CA Annual Educational Conference– DoubleTree Hotel, Mission Valley MAY CAI National Conference Las Vegas, NV Morning Educational Program: Stress Management – Courtyard

by Marriott

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23 28-29

Afternoon Educational Program: Stress Management – Hilton Garden Inn, Carlsbad JUNE Monte Carlo Night Kona Kai Resort Luncheon & Trade Show Topic TBA - DoubleTree Hotel, Mission Valley CAI Family Night at the Padres Game M-205 Class: Risk Management

Visit the chapter web site www.cai-sd.org to register for any event.

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SPRING 2012 • COMMON ASSESSMENT MAGAZINE

Features 6

For Rent! New Law Affects Associations’ Ability to Prohibit Rentals

BY JOEL M. KRIGER, ESQ. & LAURI CROCE, ESQ.

12

SENATE BILL 563: Official Association Business? Not Without a Meeting!

BY JEFFREY A. FRENCH, ESQ. AND ELIZABETH A. CALL, ESQ.

15

Cases Addressing Governing Documents

BY LAURIE S. POOLE, ESQ.

22

To Charge or Not to Charge?

Senate Bill 209: Electric Vehicle Charging Stations

BY JODI A. KONORTI, ESQ.

26

What Did You Say? The Impact of the Anti-SLAPP Statute on Community Associations

BY RICHARD SALPIETRA, ESQ.

34

When is Exclusive Use Common Area Not So Exclusive?

BY JONATHAN D. MASSIE, ESQ.

38

California Legislative Action Committee: Where Does It All Fit In?

BY KIMBERLY LILLEY, CMCA, CIRMS

Departments 2

Chapter Event Calendar

4

President’s Message

BY LOUISE STETTLER

18

Homeowners’ Corner: Conflict of Interest

BY SAMDOLNICK

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Chapter News

21 25 33 42

November Morning Program: Almost Free Legal Advice October 7 Trade Show Exhibitors Annual Awards Luncheon Highlights Around San Diego

Platinum Business Partner Spotlight: Anderson & Kriger New and Renewing Members Mortgage Matters

42

CLAC Donations Honor Roll

43

2012 Marketing Plan Members

A special thank you to Mimi Cortes from TVRI for taking photos at The Annual Awards Luncheon.

COMMON ASSESSMENT MAGAZINE • SPRING 2012

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Common

President’s Message EXECUTIVE COMMITTEE LOUISE STETTLER................................................. PRESIDENT Epsten Grinnell & Howell, APC

Strengthening Old Relationships & Building New Ones

A

s we present this first issue of our chapter magazine, I am reminded what an extraordinary chapter we have and the leaders and boards whose vision and hard work have brought us to this point.

As your President, I am honored to have been entrusted with the task of pursuing continued growth for our chapter. I believe that as members — whether association managers, business partners or homeowner volunteers — we all have an important role to play in ensuring that our communities thrive and our chapter is there to provide the necessary resources.

Education will always be in the forefront, along with new programs, a vibrant website, an award winning magazine, support and programs from CAI National, and our commitment to the California Legislative Action Committee.

In our ongoing effort to improve our services, this year our chapter Three of the most powerful is offering a new Designation words in the English language: Committee to mentor both 'Please help me'. community association managers ~Cathy Conheim and business partners who wish to pursue a designation in their field.

In addition, look for our new monthly e-newsletter for event information and registration and chapter updates.

Our board of directors values your input as members of this growing organization. In order to obtain your ideas and insights the chapter office will be sending out a survey and your participation would be appreciated. This is your chapter and as President, I want you to know you have a voice and encourage an open door policy.

No organization survives without its generous business partners and hard working volunteers. To this end, one of my goals is to challenge each of us to reach out and to get involved to help make our chapter grow and succeed. To become involved in one of our committees: Membership, Magazine, Marketing/Public Relations, Bowling, Monte Carlo, Billiards, Golf, Homeowners Roundtable and CLAC, contact the Chapter office at 619-299-1376.

In closing, thank you for your support and I look Louise Stettler has forward to a wonderful year of strengthening old been doing business development for Epsten relationships and building new ones.

Grinnell & Howell, APC for more than 12 years and is the 2012 Chapter President.

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SPRING 2012 • COMMON ASSESSMENT MAGAZINE

MARIE DONOVAN..................................... PRESIDENT ELECT Homeowner JASON PAYNE...............................................VICE PRESIDENT Payne Pest Management TINA ROZYCKI, CMCA......................................... TREASURER Curtis Management ELAINE GOWER.................................................... SECRETARY Homeowner CYNDI KOESTER, PCAM...................................... EX-OFFICIO Mutual of Omaha Bank/CondoCerts DIRECTORS KERRY BEATTY, PCAM........................................................Manager ELIZABETH FRENCH, ESQ. ..............Green, Bryant & French, LLP CO-LEE GREV, PCAM............ Pacific Rim Property Management CHRIS HODGE, PCAM............... Elite Community Management BRUCE ROSENBLATT ................................................... Manager RICK SALPIETRA, ESQ................. Law Offices of Richard Salpietra SHANNON SMITH......................................Reconstruction Experts JASON STEWART..........................................Park West Landscape KARINA TATUM . ........................SD Preferred Property Managers CHAPTER EXECUTIVE DIRECTOR BARBARA OZENBAUGH, CMP 619-299-1376 MANAGING EDITOR AND NEW & RENEWING ADVERTISING SALES BARBARA OZENBAUGH, CMP 619-299-1376, barbara@cai-sd.org DESIGN & PRODUCTION KRISTINE GAITAN REY ADVERTISING & DESIGN / THE CREATIVE DEPT. 760-746-8700 MAGAZINE EDITORIAL COMMITTEE LAURIE POOLE, ESQ. (CHAIR)............. Peters & Freedman, LLP LAURI CROCE, ESQ. ............................ Anderson & Kriger, APC SAM DOLNICK.......................................................... Homeowner JEFF FRENCH, ESQ....................... Green, Bryant & French, LLP BRIAN KALMENSON, CCAM....Michael Abdou Insurance Agency JODI KONORTI, ESQ. ................ Epsten, Grinnell & Howell, APC CYNDI KOESTER, PCAM..... Mutual of Omaha Bank/CondoCerts KIMBERLY LILLEY, CIRMS........................Berg Insurance Agency JEFF MORIN...........................Global Disposal Reduction Services JEAN-MARIE SALVIA.................................... Walters Management LOUISE STETTLER......................... Epsten Grinnell & Howell, APC All articles and paid advertising represent the opinions of authors and advertisers and not necessarily the opinion of either Common Assessment Magazine or the Community Associations Institute – San Diego Chapter.

Information contained within should not be construed as a recommendation for any course of action regarding financial, legal, accounting or other professional services and should not be relied upon without the consultation of your accountant or attorney.

Common Assessment Magazine is the official quarterly publication of the San Diego Chapter of the Community Associations Institute. CAI San Diego Chapter encourages submission of news and articles subject to space limitation and editing. Signed letters to the editor are welcome. All articles submitted for publication become the property of CAI San Diego Chapter. Reproduction of articles or columns published permitted with the following acknowledgement: “Reprinted with permission from Common Assessment Magazine, a publication of the Community Associations Institute San Diego Chapter.” © 2012 CAI - San Diego Chapter

ADVERTISING & CORRESPONDENCE SHOULD BE SENT TO: Common Assessment Magazine CAI - San Diego Chapter 1081 Camino del Rio South, Suite 109, San Diego, CA 92108 619-299-1376 / fax 619-299-1377 / www.cai-sd.org

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COMMON ASSESSMENT MAGAZINE • SPRING 2012

5

For Rent!

New Law Affects Associations’ Ability to Prohibit Rentals

BY JOEL M. KRIGER, ESQ. & LAURI CROCE, ESQ.

THE CALIFORNIA ASSOCIATION OF REALTORS

(a) An owner of a separate interest in a

was successful in obtaining approval of a new law

common interest development shall not be

which took effect January 1, 2012: SB 150 (Correa),

subject to a provision in a governing document

adding Civil Code Section 1360.2 concerning the

or an amendment to a governing document that

renting out of separate interests in common interest

prohibits the rental or leasing of any of the separate

developments. The statute provides that an owner

interests in that common interest development to

shall not be subject to any provisions in governing

a renter, lessee, or tenant unless that governing

documents that prohibit rentals or leasing unless

document, or amendment thereto, was effective

the provisions were in effect prior to the date the

prior to the date the owner acquired title to his or

owner acquired title. The heart of the statute is

her separate interest.

contained in Subdivision (a) of Section 1360.2:

Subdivision (f) contains the January 1, 2012 effective date. Together, these provisions mean that owners are exempt from prohibitions on leasing enacted after January 1, 2012 and after the owner acquired title. These kinds of exemptions are colloquially referred to as “grandfathering.”

Subdivision (b) provides that owners may expressly consent to a prohibition on leasing, notwithstanding

the

grandfathering

rights

conferred by subdivision (a). Subdivision (c) extends grandfathering rights to a transferor when the property is transferred without a reassessment by the county tax assessor - for example, when property is transferred into a family trust. Transfers through certain probate proceedings, or transfers as to which real estate Transfer Disclosure Statements are not required, are also grandfathered.

Prohibitions upon rentals or leasing, versus rental restrictions The language in the new law is clear to apply to prohibitions upon rentals or leasing and not, by implication, to mere restrictions on rentals. In fact, Subdivision (d) includes a rental restriction requiring the lessor to give the association the tenant’s name and contact information. (d) Prior to renting or leasing his or her separate interest as provided by this section, an owner shall 6

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

Continued on page 12

COMMON ASSESSMENT MAGAZINE • SPRING 2012

7

FOR RENT

not so clearly permissible under the new law:

Continued from page 6

• Ban on rentals for the first twelve or

What Does “Prohibit” Actually Mean?

provide the association … the name and

twenty-four months of ownership. This

It does not appear to mean “restrict’, as

contact information of the prospective tenant

type of provision discourages investors

in “use restrictions.” Forbidding any type of

or the prospective tenant’s representative.

and increases owner occupancy. The

rule or regulation concerning rentals would

Common leasing restrictions which do

prohibition on leasing is not permanent,

undermine the purpose of the governing

not appear to be disallowed by the new law

but there is, in fact, a prohibition on

documents to oversee a peaceful residential

include:

rentals or leasing for a specified period

community with stable or enhanced property

• Minimum

of time.

values. So does the new Civil Code Section

lease

terms

to

prevent

transient occupancy (e.g., weekly rentals)

• Setting a maximum percentage of the

1360.2 apply solely to complete prohibitions

or repeated disruptions by resident

total number of units or lots that can be

on all leasing, applicable across all properties

turnover (e.g., leases with less than a six

rented. This type of restriction is very

in the community? Or does the statute also

month term).

beneficial to an association in qualifying

apply to partial prohibitions that benefit

• Occupancy limits (e.g., adoption of the

for FHA certification and having its

the association and its resident owners at

federal standard of two-persons-per-

owners and their properties qualify under

the expense of non-resident owners and

bedroom plus one.)

mortgage lending criteria relating to

investors? The statute leaves these questions

owner-occupancy, even if the restriction

open for further debate.

• Compliance with use restrictions (e.g., parking in designated spaces, using

creates

problem

The purpose of Subdivision (e) is murky.

acceptable window treatments) and

in tracking the number of rentals and

The statute includes Subdivision (e) which

nuisance preventatives (e.g., noise and

equitably allocating the right to rent.

provides that the new law does not “revise,

foot traffic regulations) in the governing

Again, the prohibition on leasing is not

alter, or otherwise affect the voting process

documents.

permanent, but there is a prohibition

by which a common interest development

None of these prohibit rentals or leasing.

as to some owners for an indeterminate

adopts or amends its governing documents.”

period of time.

What does this mean? The statute does

Yet other common leasing restrictions are

an

administrative

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not seem even to address the process of adopting CC&Rs or operational rules.

Under the law as written, majority approval by members of a prohibition on rentals adopted after January 1, 2012, should not be able to overcome the grandfathering rights conferred by Subdivision (a).

New law also requires disclosures. The new law also amends Civil Code Section 1368 requiring information to be provided to prospective purchasers regarding the existence of rental prohibitions in the governing documents. Civil Code Section 1368 now contains Subdivision (a)(9) which provides that if the governing documents contain a prohibition on rentals or leasing, ”statement describing the prohibition and its applicability” must be included in the association’s disclosure packet given to sellers.

What Board Members and Managers Need to Know About the New Law Civil Code Section 1360.2 appears to raise questions without easy answers. Practical steps associations can take to avoid costly litigation while still addressing the issue of rentals in the community include: • Enact moderate rental restrictions reasonably related to the interests of the community members and the goal of peaceful residential living. The more draconian or voluminous the restrictions on rentals and leasing, or on tenants as opposed to resident owners, the more likely an association is to draw fire from a disgruntled owner.

• Seek ownership consent for rental prohibitions. In some instances, there are identifiable economic advantages to limiting the number of rentals in a community, or encouraging owner occupancy. Narrowly drawing partial prohibitions applicable to new owners which will benefit existing owners (who can give their consent) may result in the incremental adoption over time of partial prohibitions which, added Continued on page 10 COMMON ASSESSMENT MAGAZINE • SPRING 2012

9

UBM188_Apr7_SanDiego_4.75x10_4C

FOR RENT Continued from page 9

together, create a greater good for the entire community.

• Disclose all rental restrictions, regardless of whether they technically constitute a “provision in the governing documents that prohibits rental or leasing of any of the separate interests” in the community.

Board members and managers will need to exercise patience and perseverance, utilizing legal counsel and keeping tabs on their peers’ experiences to help guide them. Maintaining the long view is also key. Associations must keep in mind that its board of directors is but a part of an entity with a past as well as a future. Just as the economy cycles through good and bad times, so does ownership within a community cycle as previous owners move on and new owners move in. The short term may be disrupted or logistically difficult to

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SPRING 2012 • COMMON ASSESSMENT MAGAZINE

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COMMON ASSESSMENT MAGAZINE • SPRING 2012

11

SB 563: Official Association Business?

Not Without a Meeting!

Board decisions can no longer happen via text message or email

S

TARTING JANUARY 1, 2012, boards will no longer

BY JEFFREY A. FRENCH, ESQ. & ELIZABETH A. CALL, ESQ.

be able to take action outside of a meeting pursuant to Senate Bill 563. That means no more decisions via email or text messaging. This

undoubtedly will make many managers smile because it may make their job easier since they no longer have to track and document board action between meetings. But, it also means meetings will likely be longer and the association’s ability to act quickly will be hampered by the new provisions. The reason for these changes? Transparency.

In response to the ever evolving world of technology, Senate Bill 563 defines and limits how boards may and may not meet for purposes of conducting official business.

In response to the ever evolving world of technology, this bill defines and limits how boards may and may not meet for purposes of conducting official business. In essence, board members will have to let go of the convenience of deciding matters via informal methods such as email and text message and instead will be required to conduct matters in person or via telephone or video conference. SB 563 may provide for better communication between boards and association members regarding board decisions made, however the new limitations may prove to be logistically inconvenient to many boards.

The two primary provisions of SB 563 of which boards and managers

need to be aware of are a new notice requirement and a requirement that all meetings be conducted real-time. First, the senate bill alters existing notice requirements to provide that association members be given two (2) days’ notice for meetings taking place via teleconference. In addition, each board member attending the teleconference must state his or her location for the record and one member must be physically located at or near the development so that interested owners may physically be present to listen in on the call. More specifically, the bill guarantees that all association members are given the opportunity to hear the issues presented. Association members can still be excluded from certain meetings that are intended only to address executive matters, however they must receive notice that an executive meeting will take place.

The second primary provision is the real-time requirement for meetings.

Senate Bill 563 explains that the board must meet either in person, by phone or via video conference to conduct official business. Matters may not be decided via

12

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

written electronic mail consent unless they

for the upcoming changes to ensure a

the new meeting requirements. Boards

constitute an emergency matter. However,

smooth transition to the new meeting

should develop a strategy for meeting via

SB 563 specifically provides that a meeting

process. The most important measure

telephone or videoconference. Do board

is not a series of electronic transmissions,

is education. Managers and/or counsel

members have the technology available

such as electronic mail. This last provision

should discuss the effects of SB 563

to comply with the bill’s conferencing

allows boards to communicate via email

with boards. For example, if a board has

requirement? A training session may be

but they cannot take action via email.

historically decided matters via electronic

necessary to educate board members

mail or text messaging, the board should

regarding teleconferencing and

expect to have longer meetings under

videoconferencing. Boards should also

The “emergency” exception within the bill is construed narrowly and therefore cannot be used as a catch-all or safe-harbor

Continued on page 14

to circumvent the bill’s intent of promoting “live” meetings. The emergency exception provision of the bill allows board members to decide matters via email only when an emergency exists. Under current law, an emergency meeting of the board occurs when the president or any two members of the governing body (other than the president) call a meeting where, under the circumstances it could not have reasonably foreseen that the matter would require immediate attention and possible action by the board, and the circumstances make it impracticable to provide notice as required by law. Accordingly, most matters will not fall under this emergency exception.

The purpose of this bill is to provide transparency regarding board action.

Supporters of the bill may say that the bill will provide members more opportunities

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to be informed of board decisions, which will improve transparency. Critics of SB 563 claim that limiting the board’s ability to communicate and decide matters swiftly and informally through email and text message will be difficult to implement and impractically slow. Similarly, it is often difficult to find a convenient time for all members to attend (even by telephone).

For example, for those boards that currently use email to collectively make decisions, implementation of SB 563

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may mean fewer meetings, less items addressed, and increased red tape.

Ultimately, these inconveniences may deter association members from running for board positions.

Common interest communities, their managers and attorneys, can and should take proactive measures to prepare COMMON ASSESSMENT MAGAZINE • SPRING 2012

13

SB 563 Continued from page 13

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not become hamstrung by the virtual loss of the unanimous written consent tool for actions outside of regular board meeting. Boards are encouraged to seek assistance and support from legal counsel and management when navigating the new provisions of Senate Bill 563.

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SPRING 2012 • COMMON ASSESSMENT MAGAZINE

Cases Addressing Governing Documents

BY LAURIE S. POOLE, ESQ.

PROPOSED LEGISLATION REGARDING HOMEOWNERS ASSOCIATIONS are closely followed, so by the time bills are signed, there are few surprises.

However, cases decided by the California Appellate courts are rarely known in advance and it is always interesting to see what issues arise and how they are addressed.

California Appellate Courts are reviewing courts – they review judgments rendered in the Superior Courts. Appeals to the Appellate Courts are automatic –the appeal will be heard if it is from a decision that is “appealable.” Published Appellate Court opinions are considered precedent in the Superior Courts served by the particular appellate district and can be cited in any Superior Court. Unpublished cases are not controlling and can not be cited. A request can be made to publish an opinion if it meets certain criteria, such as setting forth important new principles of law. We routinely keep track of new appellate court opinions that impact homeowners associations and request publication of those that would benefit our industry, such as Sui v.

Price (discussed below). The following are 2011 cases regarding governing documents.

Sui v. Price, (2011) 196 Cal. App. 4th 933 Mr. Sui parked his inoperable van in his exclusive parking space within his association. The association amended its rules to prohibit parking of disabled, inoperable vehicles. After issuing a warning regarding parking the inoperable van, the association had Mr. Sui’s van towed.

Mr. Sui then filed a lawsuit against the association and the board president, alleging numerous

wrongdoings. The association and board president filed motions challenging the complaint, claiming it did not allege legal theories under which Mr. Sui could recover.

The trial court agreed and dismissed the lawsuit.

One of the issues on appeal was whether Mr. Sui had a legal basis for breach of contract against the association. Mr. Sui alleged the association had acted in a discriminatory manner in enacting the rule because he was the only one with an inoperable vehicle. The Appellate Court rejected this argument, finding that Continued on page 16

COMMON ASSESSMENT MAGAZINE • SPRING 2012

15

CASESfollowing ADDRESSINGdecisions GOVERNINGwere originally issued as The DOCUMENTS unpublished but due to their important Continued from pageopinions, 13 precedent, our requests for publication were granted:

any benefit. However, there has been a

Tesoro Del Valle Master Homeowners Association v. Griffin, (2011) 200 Cal. App. 4th 619

test will also apply to operating rules.

An association’s decision to partially deny owners’ application to install a solar energy system, because of the aesthetic impact on the project, was upheld. The owners were ordered remove a portion of the installed solar energy system. Civil Code Section 714 provides that any covenant, restriction, or condition contained in the governing documents of homeowners associations that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable. Section 714 does not prohibit an association from considering the

question as to whether operating rules would be judged under the same test. This is the first case that affirms that the Nahrstedt

Bear Creek Planning Committee v. Ferwerda, (2011) 193 Cal. App. 4th 1178 In 2001, Robert Ferwerda began the process to build a house on the vacant lot he owned within the Alpine Meadows

aesthetic impact of a solar energy system in evaluating an architectural application.

Estates subdivision unit No. 4. Under the

Cadam v. Somerset Gardens Townhouse HOA, (2011) 200 Cal. App. 4th 383

to a separate planning committee and

A jury’s award of $1,336,197.00 to a tenant in a homeowners association who tripped and fell on a walkway separation was set aside by the Superior Court. In California, a property owner is not liable for damages caused by a trivial defect in his, her or its property. Here, the walkway separation was three-fourths to seven-eighths inch in depth. The Appellate Court determined it was not a “trivial defect” so the association was not liable, even though it was aware of the separation.

association’s CC&Rs, owners must apply obtain approval prior to constructing and excavating on their lots. The CC&Rs provided that the committee’s approval of proposed plans must be in accordance with the procedures and standards set forth in the committee’s restrictions. The CC&Rs also stated that except for setbacks, any conflicts between the CC&Rs and the committee’s restrictions would be resolved in favor of the committee’s restrictions.

CASES ADDRESSING GOVERNING DOCUMENTS Continued from page 15

The original restrictions were contained in the association’s CC&Rs. In 1990 the

the rule was reasonable under “reasonableness” test set forth in the 1994 California Supreme

committee published a “green book”

Court decision of Nahrstedt v. Lakeside Village Condominium Assn. The Narhstedt Court

containing additional procedures, standards

determined that recorded use restrictions in CC&Rs “should be enforced unless they are

and regulations and revised the book in

wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected

2002.

land that far outweighs any benefit.”

The Appellate Court determined that the Nahrstedt test should be applied to operating rules, stating: We see no reason to apply a different test for reasonableness of an association’s operating

Mr. Ferwerda brought several lawsuits, claiming the committee inappropriately blocked construction on his lot. The trial court entered judgment against Mr.

rules, especially since a rule adopted by the association’s board may be reversed by majority

Ferwerda and ordered him to pay the

vote of the homeowners at a meeting called on petition of only 5 percent of the separate

other parties’ attorneys’ fees. Mr. Ferwerda

interests in the association. An operating rule of a homeowners association must be tethered

appealed.

to reasonableness, just like the CC&Rs. Applying this test, the Appellate Court found that the rule prohibiting parking of disabled,

One issue was whether the committee could adopt additional design standards

inoperable vehicles within the development to be reasonable. “The association was perfectly

beyond those that had been originally

reasonable in prohibiting this unsightly intrusion upon the aesthetics of their common interest

adopted in the CC&Rs. The Appellate Court

development.”

determined that the conflict language in the CC&Rs expressly allowed the committee

What Boards and Managers Can Learn from this Case Since Nahrstedt, we have understood that in analyzing whether recorded CC&R restrictions are “reasonable” courts will determine whether the restrictions are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs

16

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

to adopt additional architectural design standards (those that were reflected in the original and revised green book).

The Appellate Court stated that those documents are a legitimate exercise of the

committee’s power granted to it under the

amendment, extending the document until

the case of Costa Serena Owners Coalition

CC&Rs and are binding on the homeowners

January 1, 2009, and providing for automatic

v. Costa Serena Architectural Com. (2009)

whether they are separate or supplemental

renewal. The amendment was signed by 63%

175 Cal. App. 4th 1175. The Costa Serena

to the CC&Rs.

of the owners.

decision established that procedural

What Boards and Managers Can Learn from this Case So long as the governing documents

The CC&Rs contained a provision

challenges to amendments to recorded use

stating that no structure on any lot may be

restrictions must be brought within 4 years

constructed in such a manner as to obstruct

of the date the amendments were recorded.

the scenic view of any other lot owner. In

Since Mr. Ignatin’s challenge to the 1998

have the correct language, an architectural

2007, Mr. Ignatin had plans to build a new,

amendment was filed ten (10) years after the

committee will be empowered to adopt

larger home on his lot in violation of the

amendment was recorded, his challenge was

additional architectural standards. While

CC&Rs. His neighbors wrote to him and

too late.

this case did not involve a common interest

asked him to suspend development of his

development, the analysis given by the

home until he addressed their concerns.

Appellate Court regarding the scope and

When Mr. Ignatin claimed construction would

role of architectural standards could be

not violate the CC&Rs, the neighbors filed a

applied to common interest developments.

lawsuit. for the first time, a challenge to the CC&Rs,

and was, therefore, invalid. The trial court

recorded in 1965 and had an expiration

agreed with this argument and ruled in Mr.

date of January 1, 1999. On December 31,

Ignatin’s favor.

1998, the association recorded a CC&R

encinitas office

760 436 3441

the amendment is recorded.

needed to be signed by 100% of the owners

Homeowners Association Property were

ATTORNEYS AT LAW

the challenge within four (4) years of the date

claiming that the 1998 CC&R amendment

The CC&Rs for the Brentwood Hills

PETERS

Anyone challenging the procedure used to adopt amendments to CC&Rs must file

During the 2008 trial, Mr. Ignatin raised,

Schuman v. Ignatin, (2011) 191 Cal. App. 4th 255

What Boards and Managers Can Learn from this Case

Laurie S. Poole has been an attorney with Peters & Freedman, L.L.P. since 1993. Peters & Freedman has offices in Encinitas and Palm Desert.

The Appellate Court reversed, relying on

&

FREEDMAN, L.L.P.

desert office

760 773 4463

www.hoalaw.com • mail@hoalaw.com

A FULL SERVICE LAW FIRM Experience you can rely on People you can trust COMMON ASSESSMENT MAGAZINE • SPRING 2012

17

Homeowners’ Corner Conflict of Interest: What Does It Mean?

Lately there has been a series of articles in the print media,

are sent to the MF, who opens all bids, reviews them, and then

radio and television about possible “conflict of interest” situations

makes recommendations to the board. The MF recommends its

by our elected representatives, not-for-profit organizations, and

own landscape personnel, which appears to be the lowest bid, to

in corporate offices. There also have been articles on “conflict of

the board who then approves the recommendations and signs a

interest” by some Supreme Court Justices who make decisions on

contract with the MF. At this point, since the MF opened all bids,

cases where they or some member of their family gains financially.

including their own, the MF could have reduced their bid to be the

“Conflict of interest” as defined in the dictionary1 is “1. The circumstances of a person who finds that one of his activities,

This illustration, which actually has occurred more than once, is

interests, etc., can be forwarded only at the expense of another of

an obvious “conflict of interest” as the MF used their position for

them, 2. The circumstances of a public office holder whose private

their own financial gain. To counteract this procedure the board as

financial interests might benefit from his official actions or political

a whole, a few board members, or third party personnel, appointed

influence.”

by the board, should be involved in the opening of the bids and Let us concentrate on possible “conflict of

Readers of this column are encouraged to send their opinions on the above and suggestions for future columns to samdolnick@ juno.com or by phone, 619-697-4854. Sam Dolnick has served as president of his association, is a former homeowner representative of the San Diego Chapter Board of Directors, former homeowner trustee of CAI National, and former director of the CAI Foundation for Community Association Research. He is currently homeowners’ delegate on the California Legislative Action Committee, and president of the Baker/Dolnick Education Foundation.

Guest articles are always welcome!

the MF should treated the same as any other bidder.

There are two other situations, which involves professionals,

interest” charges in common

such as CPAs and attorneys. MF hires these two professional

interest developments

groups to do the bookkeeping, monthly and yearly financial

(CID) associations, their

reports and legal opinions for both the MF and the associations

management firms and the

which they service. Since both the MF and the association pay for

professionals serving them.

these services, to whom are the CPA, bookkeeper, and attorney responsible? Who is their client? To whom do they have their first

MANAGEMENT FIRMS (MF)

There are many

allegiance, the MF or the association? These two situations lend themselves to numerous chances for “conflict of interest.” One solution to this dilemma is for the board of directors to hire their

CID management firms

own CPAs and attorneys after interviewing them. Thus, these

that provide ‘full service’

professionals have only one client—the association.

accommodations. ‘Full service’ means that these firms not only provide

ASSOCIATION BOARD OF DIRECTORS It is well known that in some associations, some owners of

financial assistance, but

record run for the board of directors in order to help their own

also maintenance and

business, their friends or family members. Fortunately this is not too

repair personnel, landscape

widespread (or is my information faulty?).

personnel and various other services which are

Let's use an illustration that involves a pool/spa company. The owner of the pool/spa company became an owner of record in the

necessary for the smooth functioning of the association. There are

CID. This particular CID had multiple pools and spas, including

independent contractors, not associated with any MF, that also

multiple ponds. He volunteered for various committees, including

provide these same services.

the budget committee. On his own volition, he contacted various

18

lowest.

Let us take landscaping services as an example. The

contractor services, including pool services, and received tentative

association needs landscaping and tree trimming. This will cost

costs for acquiring these services. Three months later, when

several thousand dollars. The MF sends requests for bids to four

board members had to be elected, he ran for the board. He ran a

landscaping companies. The MF also submits a bid. All five bids

vigorous and costly campaign but was not successful. The word got

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

around the CID that by being on the board he would be able to steer the pool/spa/ pond contract to his company. After three years of unsuccessful attempts to become a board member he sold his unit. This is an example of an igneous conflict of interest attempt.

I am sure readers of this column can give many other examples of “conflict of interest.” CID boards of directors must be very vigilant to prevent conflicts of interest from occurring.

1 The Random House Dictionary of the English Language, Unabridged, Random House, 1985.

P.S. After the above article was submitted, the “CAI Minutes <caiservices@caionline.org>”, Nov/Dec 2011 issue appeared. The illustrations presented gives much food for thought.

Legal Counsel for Homeowners Associations We have the answers to your legal questions – when you need them.

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COMMON ASSESSMENT MAGAZINE • SPRING 2012

19

New & Renewing Members Welcome new chapter members!! Thank you to our chapter members that have renewed their CAI membership.

We appreciate your continued support and participation in our chapter.

NEW MEMBERS Alma Galindo.........................................10/11 Alpine Fence, Inc. . ...............................11/11 AT&T Connected Communities ..........12/11 BOFI Federal Bank ...............................11/11 Clinkenbeard Insurance/ Farmers Agency . ..................................12/11 Daniel Anderson . .................................11/11 Dee Valle ...............................................12/11 Denise Steen . .......................................10/11 Duramax Building Products . ...............11/11 Eagle Roofing Products .......................12/11 Fran Hidalgo .........................................12/11

Harvey Phillip ........................................10/11 Independent Association Management ........................................10/11 Jan Gardner ..........................................11/11 Jeanine Robertson ...............................11/11 John Paradise .......................................10/11 John Steel .............................................11/11 Kim Pierce .............................................11/11 Lori Mills ................................................11/11 Maria Zuniga .........................................12/11 Nicholas Hully .......................................11/11 R & M Construction, Inc. . ....................10/11

Rainscape Environmental Management ....................................10/11 Russell Buckley .....................................11/11 Sharyn Koenig . .....................................11/11 Susan Mahorney ...................................12/11 Thomas Krynicki . ..................................11/11 Ti Howe .................................................12/11 Vincent Esposito . .................................11/11 Yvette Huffman .....................................11/11

RENEWING MEMBERS A. McKibbin & Co............................................................... 1997 Andre Binns ........................................................................ 1982 Andrew Jager ..................................................................... 2007 Alliance Association Financial Services ............................................................................... 2008 Abdou Insurance Agency .................................................. 2010 Bruce Becker, CCAM, CMCA, AMS................................... 1980 Bruce Bennett ..................................................................... 2001 Bob Piva Roofing . .............................................................. 2009 Byron Mettler, CMCA . ....................................................... 2009 Fenton Grant Mayfield Kaneda & Litt, LLP .............................................................. 2005 Christy Gonzales . ............................................................... 2010 Clint McClure, CMCA, AMS .............................................. 2006 Daniel Goodrich, CCAM, CMCA, AMS . .......................... 2004 Daniel Guerara ................................................................... 1999 HOA Elections of California, Inc. ...................................... 2009 Southland Paving, Inc. ....................................................... 2010 David Abrams, CCAM . ...................................................... 2005 Dawn Braddy, CMCA ......................................................... 2010 Dawn Walters, CMCA, AMS .............................................. 2005 Aquaspecs, Inc. .................................................................. 2001 Don Huffman ...................................................................... 1982 Douglas Kerner . ................................................................. 1999 Douglas Weihe ................................................................... 1999 Association Management Group, Inc. . ............................ 1994 Erika Taylor .......................................................................... 2010 Eugene Alfaro ..................................................................... 2010 Greg Martinez . ................................................................... 1999 Janet Warren....................................................................... 2008 Anderson & Kriger ............................................................. 1984 DAPA Janitorial Service ..................................................... 2007 Jerry Wilson ........................................................................ 1999 Jill Bronk . ............................................................................ 2005 Treebeard Landscape ........................................................ 2010 Seabreeze Management Company, Inc. .......................... 2009 Joyce Goldman .................................................................. 2008 Julie Bigelow, PCAM . ........................................................ 2009 Menas Realty Company ..................................................... 2011 SHE Manages Properties . ................................................. 2005 S.D. Preferred Property Managers . .................................. 1995

20

SPRING 2012 â&#x20AC;˘ COMMON ASSESSMENT MAGAZINE

Karina Tatum ....................................................................... 2006 Seacoast Commerce Bank ................................................ 2011 Kenn Ulrich . ........................................................................ 2008 Kimberly Johnson, CMCA, AMS ....................................... 2005 TruGreen LandCare ............................................................ 2011 Law Office of Laura Kwiatkowski....................................... 1993 Silverado Community Management Service ................... 1996 Able Restoration . ............................................................... 2007 Golden Girls at MPM Realty . ............................................ 2004 The Inspectors of Election . ............................................... 2007 Marie Donovan ................................................................... 2000 Mario Denys . ...................................................................... 2001 Mario Trejo, AMS . .............................................................. 2005 Mediation Solutions ........................................................... 2010 Prendiville Insurance Agency ............................................ 2006 SCT Reserve Consultants, Inc. .......................................... 1994 Miguel Magallon ................................................................ 2010 Green Valley Landscape & Maintenance, Inc. ................. 2008 Rey Insurance Services, Inc. . ............................................. 2010 Mike Woods . ...................................................................... 2008 Ned Heiskell ....................................................................... 2009 Nicole Bargas ..................................................................... 2010 Patricia Ginger .................................................................... 2006 Clean Earth Restorations ................................................... 2008 Richard Johnson ................................................................. 2005 Rod Mason .......................................................................... 2010 Roger Reeve ....................................................................... 2006 Ron Serafine . ...................................................................... 1982 Sanford Sanford . ................................................................ 2009 Summit Security Guard & Patrol ....................................... 2003 Pacific Green Landscape, Inc. ........................................... 1988 Susan Fakhouri, CMCA ...................................................... 2009 Susan Thrasher ................................................................... 2009 Prater Architects, Inc. ......................................................... 1998 Tom Shaules . ...................................................................... 1999 Tweet Edmonds .................................................................. 2008 Victoria Cohen .................................................................... 2005 William Bennett .................................................................. 2009 Zelma Hall, CMCA . ............................................................ 2005 October/November/December 2011

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21

To Charge or Not to Charge?

Senate Bill 209: Electric Vehicle Charging Stations

BY JODI A. KONORTI, ESQ.

EFFECTIVE JANUARY 1, 2012, SENATE BILL 209 adds new Section 1353.9 to the California Civil Code. SB 209 relates to electrical vehicle charging (EVC) stations. Although there are still many unanswered questions on the practicality of actually installing EVC stations, the legislature attempted to answer some preliminary issues by imposing conditions on the installation and use of an EVC station.

SB 209 makes void and unenforceable any governing document provision that effectively prohibits or restricts the installation or use of an EVC station. At the same time, SB 209 authorizes an association to adopt reasonable restrictions and requirements related to the installation of EVC stations.

Reasonable restrictions are characterized as those restrictions that do not significantly increase the cost of the station or decrease the efficiency or specified performance of the station. SB 209 also contains specific conditions for installations on the common area or exclusive use common area.

The association is required to approve an EVC station application for installation in a common area or exclusive use common area if the applying owner agrees, in writing, to comply with any published architectural standards, use a licensed contractor, provide proof of liability insurance in the amount of one million dollars naming the association as an additional insured, and pay for the electricity usage related to the station. If an application is not denied in writing within 60 days from the date of receipt of the application, the application shall be deemed approved (unless the delay is the result of a reasonable request for additional information).

The installing owner (and successive owners) are responsible for: (i) the costs of damage to the station, 22

SPRING 2012 â&#x20AC;˘ COMMON ASSESSMENT MAGAZINE

common area, exclusive use common area and/or adjacent property from the station; (ii) the costs of maintenance, repair, removal or replacement of the station, until it is removed, from the common area or exclusive use common area; (iii) the cost of electricity for the station; and (iv) disclosing to prospective buyers the existence of the station and the related responsibilities.

There are penalties for willful violations of the statute by an association. Such penalties include a civil penalty of up to $1,000, actual damages, and/or attorneys’ fees to the prevailing plaintiff.

How Does Civil Code Section 1353.9 Relate to Associations?

Civil Code Section 1353.9 applies to all common interest developments. Civil Code Section 1353.9 will likely have less of an impact on planned unit developments with parking spaces or detached garages on the individual lots than condominium communities or planned developments with common area parking or attached garages.

The biggest issues for most common

membership’s right to approve or

on common area and exclusive use

interest developments will likely be tying

disapprove an exclusive use of common

common area. Furthermore, respond to

into common area electrical systems and

area by a two-thirds vote under Civil

each application on a case-by-case basis

getting wiring to the parking space. This

Code Section 1363.07, and (2) it permits

and ensure the owners comply with all

work should all be at the expense of the

individual homeowners to unreasonably

of the statutory requirements before,

applying owner. The association might be

occupy common areas (known as a

during and after the installation process.

asked to allow owners with deeded parking

“taking”). How an association will

spaces to switch deeded spaces so the EVC

reconcile these conflicts has yet to be

station may be installed in a parking space

answered. Pending Senate Bill 880 is

adjacent to, or at least closer to, existing

intended to correct these conflicts, but

electrical wiring or outlets.

this corrective legislation is not expected

Given the potentially high cost to

until late in 2012.

install the EVC stations (i.e., boring through concrete to install the electrical), and the unlikelihood of an owner obtaining a $1,000,000 liability policy naming the association as an additional insured, it

What Do Managers and Board Members Need to Know?

There is no question that sooner or

could very well be that associations will not

later you will start to receive requests to

see many of these installations completed.

install EVC stations. Accordingly, it might

Time will tell.

be worth taking a proactive approach

Despite SB 209 being signed into

Jodi A. Konorti, Esq., is an Associate Attorney at Epsten Grinnell & Howell, APC, attorneys with offices in San Diego, the Inland Empire, and Coachella Valley

and adopting reasonable guidelines as

law, the bill has flaws, including: (1) it

to the permissible location, size, type,

conflicts with existing law regarding the

design, etc. of EVC stations installed

COMMON ASSESSMENT MAGAZINE • SPRING 2012

23

FOCUS Since 1991, Anderson & Kriger has been firmly rooted in the California real estate law landscape with a focus on providing leadership in community association law and construction defect litigation.

About Anderson & Kriger Joel M. Kriger heads the firm’s community association law division of four attorneys with a wealth of experience representing community associations in transactional and litigation matters. The firm’s collections department has enjoyed an unparalleled success rate in the recovery of unpaid assessments at a reasonable price for the past twenty years. Every member of the firm is dedicated to the personal service of its diverse clientele to ensure the maximum satisfaction and protection for their homes and community. The firm’s no nonsense, down-to-earth approach means that varied associations receive the same practical and cost-effective representation, personal and timely to meet each client’s individual needs.

The construction defect division of the firm is headed by Clayton M. Anderson, who oversees ten attorneys in offices in San Diego, Orange, and Riverside counties, and in Sacramento. The division has averaged, over the past fifteen years, more than $20 million a year in settlements for condominium and

24

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

CAI-SAN DIEGO PLATINUM MARKETING PLAN MEMBER

single family residence owners who battle with builders and developers.

The Value of CAI Membership Anderson & Kriger has long been an active participant in CAI-San Diego, partnering with managers, homeowners and others to enhance the experience of living in and working for common interest developments. Its attorneys are educators, speakers and committee members. Joel Kriger served as the San Diego Chapter’s President in 1986.

Advice for board members, community managers and industry professionals At Anderson & Kriger, we try never to forget that while common interest developments are businesses, their paramount function is to be a place where people live in relatively quiet harmony amongst neighbors. Board members are volunteers serving the community, ably assisted by professional community managers skilled in addressing the varied needs of common interest developments.

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25

What Did You Say? The Impact of the Anti-SLAPP Statute on Community Associations

BY RICHARD SALPIETRA, ESQ.

W

HEN A PERSON EXERCISES HIS

sued Mohammed Alam, a sitting board member,

RIGHT OF FREE SPEECH, and that

for defamation based on statements he made

person is sued by another party in

at a homeowners association annual meeting

an attempt to silence that speech, the first party

immediately before the election of directors.

can file what is known as a motion to strike the

Mr. Alam filed an anti-SLAPP motion which was

complaint pursuant to the Anti-Strategic Lawsuit

denied by the trial court. He then appealed the

Against Public Participation (anti-SLAPP) statute.

case.

This motion essentially terminates a lawsuit which

The Court of Appeal held that: 1) a

is filed with the intent to squelch the free speech

homeowners association meeting constitutes

rights of a party.

a “public forum” and Mr. Alam’s statements

In California, an anti-SLAPP motion is filed

that Ms. Cabrera allegedly stole money and

pursuant to Code of Civil Procedure Section

defrauded the association was a matter of

425.16. The statute requires the court to engage

public interest; and 2) Ms. Cabrera produced no

in a two-part test: first, it must decide whether

evidence of malicious intent by Mr. Alam, and

the defendant’s conduct arises from protected

therefore was not able to prove her case.

speech or activity; and second, whether the

Following the two-part test, Mr. Alam proved

plaintiff has stated a probability of prevailing on

that his statements were made in a public forum

his claim. If the court rules that both prongs of

(the association’s elections meeting) regarding

the anti-SLAPP statute are met, the case may be

a matter of public interest (Ms. Cabrera was

dismissed.

considered a limited purpose public figure).

In the context of community association

Next, Ms. Cabrera was not able to prove Mr.

governance, an anti-SLAPP motion can be very

Alam’s statements were defamatory because they

effective in terminating an improper complaint

were true, and a true statement is a complete

filed by a homeowner against the board, or filed

defense to a defamation claim. Therefore, the

by the board against a homeowner, that chills

Court of Appeal ruled in Mr. Alam’s favor and the

First Amendment free speech rights.

case was dismissed.

Cabrera v. Alam

Country Side Villas Homeowners Association v. Ivie

In the July 2011 Court of Appeal case of Cabrera v. Alam (2011) 197 Cal.App.4th 1077, the

In the February 2011 Court of Appeal case of

plaintiff, Veronica Cabrera, the past president of

Country Side Villas Homeowners Association v.

a homeowners’ association board of directors,

Ivie (2011) 193 Cal.App.4th 1110, a homeowner, Continued on page 28

26

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

COMMON ASSESSMENT MAGAZINE • SPRING 2012

27

WARD & HAGEn LLP

WHAT DID YOU SAY? Continued from page 26

Ms. Ivie, criticized the board of directors for its decision regarding the interpretation of the governing documents with respect to whether the association or the members were responsible for maintaining the exterior of the building. In this case, the board sued the homeowner seeking a declaration from the court as to whose responsibility it was to pay for the exterior maintenance of the building. Ms. Ivie filed an anti-SLAPP motion stating that the lawsuit against her was intended to chill

Serving HOA Clients Throughout San Diego County HOA General Counsel Insurance Issues

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her First Amendment free speech right to criticize the board.

The Court of Appeal held that: 1) Ms. Ivie’s criticism of the board’s decision was protected speech; and 2) the board’s

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858.847.0505

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lawsuit against Ms. Ivie was improper (since it requested the court to declare who had the maintenance obligation of the outside of the building), and therefore, the association did not have a probability of prevailing on its claim. Having met the two prongs of the anti-SLAPP motion test, Ms. Ivie prevailed, and the court dismissed the association’s complaint.

Public Forum A public forum has traditionally been defined as a place that is open to the public where information is freely exchanged. However, in these cases, the Courts of Appeal have held that: 1) a private homeowners association meeting constitutes a “public forum” and the board’s actions are a “matter of public interest” because the decision of a small number of people (the board) impacts a large number of people (the members); and 2) when a homeowner criticizes the actions of the board, or a board member makes statements about a homeowner, these too are considered “matters of public interest.”

These holdings open up a broad range of rights and responsibilities with which homeowners and board members must now contend.

28

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

Protected Activity

C e l e b r at i n g O u r 3 7 t h Y e a r

It is a significant leap forward for the courts to determine that conversations and statements made during private association board meetings, or made by a

We know the

homeowner complaining about the board,

difference

can now be considered statements that concern “matters of public interest.” This

between getting

belies a long history of legal decisions that homeowners association meetings are

the job done

private meetings.

These cases also broaden the scope

and getting it

of speech permitted by homeowners and board members if statements are made

done right.

in what is now considered a public forum (a homeowners association meeting). In

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addition, these cases hold that lawsuits filed against homeowners or board members can be quickly dismissed by the filing of an anti-SLAPP motion if: 1) the comments made by the defendant are

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protected speech and made in a public forum; and 2) the plaintiff is unable to prove his case. The courts can also award the

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winner of the anti-SLAPP motion all of his attorneys’ fees.

Conclusion

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As a result, board members and homeowners should be cautious not to file lawsuits against each other over protected speech without the ability to prove their claim; otherwise, their complaint may be quickly dismissed by the filing of an anti-SLAPP motion, and they may be responsible for paying all of the other side’s

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29

NewsStand News from CAI National

What YOU Need to Know

FHA Reignites Transfer Fee Battle

The LaTesT NeWs—aLL iN ONe PLace

(FHA) has announced its plans to disqualify

association which typically requires a two-

condominium associations from FHA

thirds majority of all property owners to

financing if the association charges a deed-

change. FHFA sought input from the public

based transfer fee at time of sale. This

at large and received more than 4,000

would put FHA at odds with the Federal

comments on their proposal. Based on the

Housing Finance Agency (FHFA), which

information received, FHFA revised their

earlier this year determined that such fees

regulation to allow community association

benefit community associations and do not

levied fees.

FHA Financing Transfer Fees

The Federal Housing Administration

challenge is that such fees are incorporated into the deed restrictions of the community

FHA has indicated that they will issue

Mortgage Insurance

impact the sale of community association

QRM Regulations

properties. It marks yet another unilateral

a Mortgagee Letter later this year which

action by FHA, without public notice or

would disqualify condominium associations

input that will have a detrimental effect

from FHA backed mortgages if they had

on the condominium market. Worse,

a deed-based transfer fee in place. Unlike

FHA conducted no formal release of this

FHFA, FHA does not intend to solicit public

pending requirement, but rather mentioned

input on this proposal nor do they find the

it as part of a training session on the new

information gathered by the FHFA on the

requirements imposed by FHA in its June

same topic to be relevant to their decision.

30 Mortgagee Letter.

Unfortunately, this is business as usual for

And More … caimortgagematters.org

Our members may recall the fierce, and

30

or a multiple of monthly assessments. The

FHA which continues to issue requirements

successful, battle waged by CAI against

for its condominium mortgage insurance

FHFA on community association transfer

program without the benefit of input from

fees earlier this year. In late 2010, FHFA

the public at large. For those who have

proposed a draft regulation which would

worked to get FHA approval, this has

have cut off all federally backed mortgages

resulted in FHA requirements that have

to community associations with deed-based

proven confusing and problematic for

transfer fees. A CAI national survey found

associations. In a statement submitted to

that forty-nine percent of all community

the House Financial Services Committee

associations have a deed-based transfer

on an FHA hearing, CAI noted that FHA’s

fee. These community transfer fees are

lack of stakeholder input “has resulted

levied at the time of sale to fund reserves,

in underwriting criteria for condominium

capital projects or operations. The fees are

associations that do not comport with

typically less than $500 and are calculated

common association business operations,

as a percentage of sale price, a fixed fee

state law or common sense.”

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

In August, CAI members from key state

potential community association residents.

legislative action committees met with

You can follow our work and share your

members of the House Financial Services

thoughts at www.caimortgagematters.org.

Committee to let them know the problems

CAI will continue to monitor and participate

FHA is creating in the condominium

in shaping the development of the FHA’s

marketplace by setting qualification

condominium underwriting guidelines to

criteria for condominium associations that

ensure that the perspective of community

conflict with association operations, state

associations is heard.

law or simply do not make rational sense.

CAI continues to expand our grassroots efforts to force FHA to engage in a more transparent process in developing criteria for condominium mortgages. As FHA currently accounts for one in three condominium loans, getting the rules right is key to restoring confidence to the marketplace. Despite our progress on a variety of mortgage issues, FHA continues to be a needless source of confusion and frustration for condominium associations.

As part of our ongoing Mortgage Matters program, CAI is working to protect homeowners in community associations

If you have any questions about the FHA’s underwriting criteria and how it could affect your community, e-mail government@caionline.org with FHA Mortgage Insurance Requirements in the subject line.

and to ensure access to fair and affordable mortgage products for all current and

Thomas Mitchell Cheek VP, Business Development tcheek@pwbonline.com 760 432 1380 office 760 550 2030 cell

COMMON ASSESSMENT MAGAZINE • SPRING 2012

31

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SPRING 2012 • COMMON ASSESSMENT MAGAZINE

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Thank You to Our Exhibitors Accurate Termite Pest Control Anderson & Kriger LLP Animal Pest Management Arborwell

DIAMOND SPONSORS Anderson & Kriger, LLP Peters & Freedman, LLP EMERALD SPONSORS Bald Eagle Security Clean Earth Restorations Emercon Construction Landsystems, Inc. RSI Roofing Services, Inc. Westturf Landscape

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AWARD WINNERS Community Association of the Year Collwood Park HOA

Committee Member of the Year Bruce Rosenblatt

Community Manager of the Year Leonard O'Reilly, CMCA, AMS

Samuel L. Dolnick Lifetime Achievement Award Marie Donovan

Business Partner of the Year Servpro Industries

President's Award Marie Donovan

COMMON ASSESSMENT MAGAZINE â&#x20AC;˘ SPRING 2012

33

When is Exclusive Use Common Area Not So Exclusive?

BY JONATHAN D. MASSIE, ESQ.

A RECENT COURT OF APPEALS DECISION

Appeal’s primary focus was on determining

evaluated a board’s decision to deny repairs

whether the lower court was correct in finding

related to a leaky sewer pipe. In Dover Village

that the sewer pipe was common area and

Assn. v. Jennison (2010) 191 Cal.App.4th 123, the

the responsibility of Dover Village to repair. In

plaintiff had a leaky sewer pipe located two feet

reviewing this matter, the court looked to the

beneath the concrete slab underlying his unit.

Davis-Stirling Act and the language of the CC&Rs

The association said he was responsible for the repair bill on the theory that the

as guidance.

In examining the Davis-Stirling Act, the Court noted that pursuant to the general structure of this statute, the homeowners association is responsible

sewer pipe was

for the common area and the individual owner is

“exclusive use

responsible for exclusive use common area. The

common area”

court then examined Civil Code Section 1364 of

for which he was responsible. The trial court disagreed

the Davis-Stirling Act which defines “exclusive use common areas [as]… a portion of the common areas designated by the declaration for the

and entered

exclusive use of one or more, but fewer than all,

a judgment

of the owners of the separate interests and which

declaring

is or will be appurtenant to the separate interest

that the

or interests.” Of particular interest, the court

association

identified the following language that assists in

should bear the expense of the repair

defining an element as exclusive use: “(1) Unless the declaration otherwise provides, any shutters, awnings, window boxes,

and awarded

doorsteps, stoops, porches, balconies, patio,

Jennison about

exterior doors, doorframes, and hardware incident

$17,000 in

thereto, screens and windows or other fixtures

attorney fees

designed to serve a single separate interest, but

and costs. The

allocated outside the boundaries of the separate

association then

interest, are exclusive use common areas allocated

appealed.

exclusively to that separate interest.” [Emphasis

The Court of

added.)

Continued on page 36

34

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

COMMON ASSESSMENT MAGAZINE • WINTER 2011

35

WHEN IS EXCLUSIVE USE NOT SO EXCLUSIVE? Continued from page 34

In evaluating whether sewer pipes are considered exclusive use as set forth in Section 1364, the court noted that the Latin phrase, ejusdem generis controls.

Under the cannon of ejusdem generis, the Court determines whether a given thing comes within a more general category by comparing it with things specifically mentioned in the category. The court found that sewer pipes were not part of the items listed in Civil Code Section 1364 that could be considered exclusive use common area.

The Court noted that considering a sewer pipe to be similar to those items listed in Section 1364 that serve a single separate interest did not fit this test since the pipe is literally physically connected to every other piece of the system. “Every unit’s sewer pipes are a “fixture´ of every other unit’s sewer pipes.”

The Court then reviewed the content of the CC&Rs. The court noted that the definition of exclusive use common area did not include sewer pipes. Under the rule of

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expressio unius est exclusio alterius—say one thing and impliedly exclude the other— the most natural reading of the CC&Rs is that sewer lines are not “exclusive use common areas appurtenant.” By expressly saying patio and garage areas come within the category, the CC&Rs impliedly say that sewer lines do not. (Cf. People v. Palacios (2007) 41 Cal.4th 720, 732 [as applied to statutory construction, expressio unius maxim means that "if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary"].

Finally, the Court reviewed the board’s conclusion that a portion of sewer line was exclusive use common area is a matter committed to the board’s discretion to which courts should accord it deference.

The association argued that the rule of judicial deference, as first articulated in Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th

36

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

249 controls and the Court should give deference to the finding of the board.

The Court rejected the associationâ&#x20AC;&#x2122;s attempt to utilize judicial deference as a shield to protect its decision noting that the argument fails because it confuses a legal issue governed by statutory and contract text with matters that genuinely do lend themselves to board discretion.

The Court noted that there is an obvious difference between a legal issue over who has the responsibility for a sewer line and the decision on how a board goes about making a repair that is within its responsibility. The latter is subject to the rule of judicial deference and the former is not.

There are two important lessons to be learned from this case. First and foremost, the rule of judicial deference does not protect all board decisions and only applies

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to decisions regarding maintenance of items within the responsibility of the board. The Courts are tending to limit the application of this judicial rule and not expand its application.

Second, if the CC&Rs do not list sewer lines as exclusive use common area or the specific maintenance obligation of

CAI-SAN DIEGO'S FAMILY NIGHT AT THE

the owner, be very careful in attempting to compel an owner to maintain the lines.

Let the clear language of the documents guide the board decision, not what can be inferred by implication.

Jonathan D. Massie has been practicing law since 1989 and has specialized in the representation of Common Interest Developments. He is a partner in the law firm of Massie Berman, APC.

JUNE 23, 2012 COMMON ASSESSMENT MAGAZINE â&#x20AC;˘ SPRING 2012

37

California Legislative Action Committee: Where Does It All Fit In?

by Kimberly Lilley, CMCA, CIRMS

E

ach year, legislators in Sacramento introduce dozens of bills that have a direct impact on community association

residents and the professionals that serve them. As you can imagine, most of these legislative proposals would ultimately have a negative impact on associations. While most people know that CAI is actively engaged in protecting the interests of community associations in Sacramento, few realize the incredible effort CAI volunteer advocates take to protect our communities, management companies and businesses.

CAI advocates for our members through state-based Legislative Action Committees (LACs), and in California the LAC is officially called the CAI California Legislative Action Committee, or CLAC. It is one of 33 statebased LACs that advocate for community associations in states across the country.

But who serves on a LAC? What principles guide their work and how does the CLAC work with CAI’s eight California chapters?

In a state (like California) where CAI has multiple chapters, it is important that we speak with one voice to legislators. For this reason, CAI National has established Legislative Action Committees to serve as the coordinating body for CAI’s legislative, regulatory and legal advocacy in a state.

Each LAC is made up of CAI members from within the state: in California each of the eight chapters nominates two delegates to serve on CLAC. CLAC also has the ability to nominate “at-large” delegates that do

38

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

not represent a specific chapter, but serve

vital role in the support of CAI’s advocacy

legislation, so when the delegates vote at a

as at-large (statewide) members. Each

efforts. Local chapters have the option to

statewide CLAC meeting on what position

LAC strives to have a balance of members

create local legislative support committees.

to take on certain bills, the delegates can

representing each of the membership

These committees can help with chapter

accurately reflect the desires of the chapter

types of CAI: Community Association

fundraising to support the statewide

that they represent.

Volunteer Leaders, Community Managers

legislative activity, they can actively discuss

and Business Partners. All the nominees

potential legislation and how it affects their

support committees through the state-

to the LAC are reviewed and approved

chapter and they can help to keep their

wide CLAC all the way to the Government

by the Board President of CAI’s national

chapter informed of the activities of the

& Public Affairs Committee at the

organization.

state-wide entity. California’s Legislative

CAI_National level, the goal is the same:

Action Committee has chosen to appoint

to research pending bills that may affect

in their legislative efforts by CAI’s public

a liaison for each chapter to provide

community associations and to educate

policies. The public policies are member-

continuity in communication between the

both the legislators and our membership

developed statements on CAI’s views on

state-wide LAC and the local chapters. You

about these bills and the best way to handle

issues critical to community associations.

may see your chapter’s liaison presenting

them. Together, we are more than we could

The public policies provide a broad outline

a “CLAC Moment” at a monthly luncheon,

ever be alone.

for CAI’s positions on key issues like

and that liaison may be attending your

assessment collection, homeowner rights,

chapter’s board meetings to keep the board

environmental issues and other critical

apprised of the state-wide CLAC’s current

topics.

activities. The liaisons may also help to

CLAC and other state LACs are guided

Aside from nominating delegates to serve on CLAC, local CAI chapters play a

ensure that the chapter’s delegates are kept

From the local chapter legislative

Kimberly Lilley, CMCA, CIRMS is Director of Marketing for Berg Insurance Agency and the PR Chair for the California Legislative Action Committee.

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ATTORNEYS CONT'D

FENCING/GATES

Law Offices of Richard Salpietra Rick Salpietra, Esq. .................. 858-756-2233

fax 858-759-9938

rsalpietra@salpietra.com

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Fenceworks Tom Barrett................................ 760-724-8131

fax 760-724-8483

tbarrett@fenceworks.us

www.fenceworks.us

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Ward & Hagen, LLP Kirk Yake, Esq............................ 858-847-0505

fax 858-847-0105

kyake@wardhagen.com

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ACCOUNTANTS Sonnenberg & Company Leonard Sonnenberg................ 858-457-5252

fax 858-457-2211

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ARBITRATION & MEDIATION

Associated Professional Services Neal Chazin......................619-299-6899 x101

fax 619-299-8242

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Mediation Solutions Mary Delmege........................... 760-504-7977

fax 760-745-6131

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Curtis Management Company Patrick S. Campbell, CCAM....... 877-587-9844

fax 858-587-9972

pcampbell@curtismanagement.com

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ATTORNEYS Anderson & Kriger Janet Wilcox.............................. 619-589-8800

fax 619-464-2600

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Please see our ad on page 9 Epsten Grinnell & Howell, APC Jon Epsten, Esq........................ 858-527-0111

fax 858-527-1531

jepsten@epsten.com

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fax 949-554-0707

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Please see our ad on page 37 Greco Traficante Schulz & Brick, APC Peter Schulz, Esq. .................... 619-234-3660

fax 619-234-0626

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fax 760-436-3442

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COMMUNITY ASSOCIATION MANAGEMENT

S.H.E. Manages Properties, Inc. Karen Martinez, CCAM.....619-291-6300 x 320

fax 619-291-8300

karen@shemanages.com

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fax 858-495-0909

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CONSULTING Curtis Management Company Patrick S. Campbell, CCAM....... 877-587-9844

fax 858-587-9972

pcampbell@curtismanagement.com

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CONSTRUCTION MANAGEMENT Sullivan Construction Management Pat Sullivan................................. 619-722-7580

fax 866-306-6804

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SPRING 2012 â&#x20AC;˘ COMMON ASSESSMENT MAGAZINE

FINANCIAL SERVICES Curtis Management Company Patrick S. Campbell, CCAM....... 877-587-9844

fax 858-587-9972

pcampbell@curtismanagement.com

www.curtismanagement.com

Please see our ad on page 13 First Bank Jan Hickenbottom, PCAM....... 800-848-6771

fax 949-477-0255

Jan.hickenbottom@fbol.com

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fax 888-493-1973

ckoester@cabanc.com

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fax 760-432-1339

tcheek@pwbonline.com

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fax 714-864-5190

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fax 760-301-0046

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fax 800-791-9010

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INSURANCE Berg Insurance Agency, Inc. Michael Berg, CIRMS................ 800-989-7990

fax 949-586-9877

michael@berginsurance.com

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LANDSCAPE MAINTENANCE AND/OR CONSTRUCTION Pacific Green Landscape, Inc. Heather Collins.......................... 619-390-9962

fax 619-390-0865

heather@pacificgreenlandscape.com

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Please see our ad on page 11 Steven Smith Landscape Gigi Golden-Smith.................... 760-745-9916

fax 760-745-1982

ggolden@stevensmithlandscape.com

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MAINTENANCE & REPAIR ProTec Building Services, Inc. Julie Villelli................................. 858-569-1080

fax 858-569-1088

jvillelli@protecbsi.com

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fax 619-584-3864

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Please see our ad on page 39 Payne Pest Management Jason Payne............................... 858-277-2228

fax 858-277-2212

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RESERVE STUDIES Association Reserves San Diego LLC Matthew Swain, RS................... 619-567-5239

fax 619-568-3564

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ROOFING Premier Roofing Bill Capito.................................. 619-667-4565

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Please see our ad on page 21

CAI JobMarket

SECURITY SERVICES Bald Eagle Security Dmitriy Todorov......................... 619-230-0022

fax 619-230-6610

dmitriyt@baldeaglesecurity.com

www.baldeaglesecurity.com

Please see our ad on page 14 Universal Protection Services Kim Davis................................... 858-874-4493

fax 858-874-4481

kdavis@universalpro.com

www.universalpro.com

Please see our ad on the Back Cover

TOWING Western Towing Kathy Tighe................................ 619-297-8697

fax 619-296-2822

denisetb@westerntowing.com

www.westerntowing.com

Please see our ad on page 30

WATER SUBMETERING California Sub-Meters Robert Anaya............................. 858-571-8999

fax 858-571-4470

robert@calsubmeter.com

www.calsubmeter.com

Please see our ad on page 24

The Right Match The Right Job

Whether you’re in the community association business or trying to break into this growing and dynamic industry, CAI Job Market is your best way to get noticed and hired by management companies, associations and other industry service providers.

You can post your resume and profile online, search and apply for jobs nationwide, and set up job alerts for opportunities that match your requirements—all at no cost.

The Right Employee

CAI Job Market offers targeted hiring solutions exclusively for the community association industry, saving you time and money in your search for professionals who understand your business.

Review hundreds of candidate profiles with the expertise and credentials you need, and only pay to view the full resumes of those who best fit the job. Or post your open positions at a cost that’s far lower than other jobsearch websites or search consultants. You can also highlight your positions with preferred postings and purchase multiple postings at a discounted rate.

Sonnenberg & Company Leonard Sonnenberg................ 858-457-5252

fax 858-457-2211

lens@sonnenbergcpas.com

www.sonnenbergcpas.com

Please see our ad on page 36

www.caionline.org/jobmarket

COMMON ASSESSMENT MAGAZINE • SPRING 2012

41

around san diego STORK VISIT Congratulations to the chapter’s own April Baldwin and Tim Loiodice on the birth of their daughter Mia Frances Loiodice. Baby Mia was born on January 20, 2012, weighed 5 lbs., 2 oz and was 18 1/2 inches long. Welcome baby Mia!

NEW EMPLOYEES Brett Musgrove, President and CEO of PrimeCo Painting and Construction is pleased to announce the addition of two new members to his sales team. Melissa Scordel will serve PrimeCo’s clients in San Diego, focusing her attention on community management firms along the coast. Jeff Franklin will cover the territory along the San Diego’s Highway 15 corridor, up to and including the Temecula and Murrieta areas.

SAN DIEGO 2012 CAI-CLAC HONOR ROLL

By Sam Dolnick, CAI-CLAC Delegate-at-Large

The CAI-CLAC Honor Roll is being presented for the third year. All individuals involved in common interest communities, whether they are associations, homeowners, professionals, managers or business partners, who have contributed funds to CAI-CLAC in 2012 to assure that our voice is heard in the halls of the California legislature are to be congratulated. CAI-CLAC monitors legislation regarding common interest developments (condominiums, planned developments, stock cooperatives and community apartment projects) that the legislators are asked to deliberate and vote upon each year.

A heart felt thanks to all contributors. ABSOLUTELY NO FUNDS are given to any political party or to any candidate. All funds are used solely for issue oriented legislation affecting CIDs. However, our legislative advocate must be paid and items like stamps, stationery, phone calls, rent, maintenance of web site and other similar expenses must be paid.

2012 Goal = $25,084 • $500 collected to date. • Only $24,584 to reach goal.

Our thanks to the following contributors from January 1 -31, 2012.

Anderson & Kriger

CAI ANNUAL CONFERENCE & EXPOSITION Caesars Palace Las Vegas | May 2–5, 2012

What drives you?

WHAT GUIDES YOUR CAREER? What are the signs of su

ccess?

Explore these questions and more at the CAI Annual Conference and Exposition. Each year, the largest international community association event provides new, up-to-the-minute information and resources to keep you moving forward.

Register online at www.caionline.org/ conference or call (888) 224-4321 (M–F, 9–6:30 ET).

42

SPRING 2012 • COMMON ASSESSMENT MAGAZINE

Save $5 when 0 you regist er March by 27!

Marketing Plan Members

PLATINUM

GOLD Animal Pest Management Bald Eagle Security Clean Earth Restorations Fenceworks

Mutual of Omaha Bank/ CondoCerts Nautilus General Contractors, Inc. Premier Roofing CA, Inc.

RSI Roofing Seacoast Commerce Bank Universal Protection Services Western Towing

BRONZE Arborwell

Law Offices of Richard Salpietra

ProTec Building Services

Artistic Maintenance

Mt. Helix Pest & Termite Control

Rodent Pest Technologies

Association Reserves San Diego, LLC

N.N. Jaeschke, Inc.

Sky Security Services

AV Builder Corp

O’Connell Landscape Maintenance

Sullivan Construction Management

Behr Process Corporation

Pacific Green Landscape

Summit Security

Fenton Grant Mayfield Kaneda & Litt, LLP

Payne Pest Management

Union Bank

Popular Association Banking

US Bank

First Bank

Pro-Tech Painting

COMMON ASSESSMENT MAGAZINE • SPRING 2012

43

Let us worry about keeping your neighborhood safe, so you don’t have to.

For more information contact Kim Davis 858-518-7871 kdavis@universalpro.com www.universalpro.com

• • • • • • • • • •

Dedicated community security patrol service Nightly patrol drive-through service Security consulting services Liability and emergency preparedness specialists After hour and weekend supervision and support Special neighborhood watch programs Articles for resident newsletters Discounted alarm installation and monitoring Web-based neighborhood incident tracking system Representatives to attend monthly HOA meetings and handle any security related matters