WINTER 2020
Inside this issue: A S U
AGDE 8
H E R
E ER
:
P E B F O E
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RE A EP
IC T N O E? A ’S ANC T A ST H W CUM TO CAGIER12 N P HE W D &RS N A CC W S– E O T C H OR GH I F R T ENE 15 N S E G N PA M O N D E D I AT I E AM LLOWSSOC T S SA R I F AT ’ ) I N A T H O W DN (AN PA
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8
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How New Balcony and Election Laws Impact HOAs Page 5
Winter 2020
A PRACTICAL REVIEW OF COMMUNITY MANAGEMENT LAW
2020 CACM Winter Law Journal Editorial Committee Chief Editor
Fred Whitney, Esq. Whitney | Petchul
Attorney Guest Editor
Theresa Filicia, Esq. Berding | Weil LLP
Winter Journal Committee Members Allison Andersen, Esq. Angius & Terry LLP
Jill Morgan, CCAM Allure Total Management
Mark Guithues, Esq. Community Legal Advisors, Inc.
Hamlet Vazquez, MCAM-HR Action Property Management
Howard Silldorf, Esq. Berding | Weil LLP
Eric Kazakoff, CCAM Canyon Lake Property OA
Katrina Solomatina, Esq. Hopkins & Carley
An archive of past issues can be found under Member Resources at CACM.org. The CACM Law Journal is a digital publication distributed four times per year to all members, in addition to supporters of the California Association of Community Managers. DISCLAIMER: CACM does not assume responsibility for the accuracy of articles, events or announcements listed. Please be advised that the opinions of the authors who contribute to the Law Journal are those of the author only, and do not necessarily reflect the opinions of CACM and other industry attorneys. Please note that in a constantly evolving industry there are frequently multiple interpretations of the controlling statutes and case law. The information contained in these articles is of a general nature and not intended as legal advice. If you have any questions, please discuss them with your association’s legal counsel.
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Letter from the Guest Editor This year has been a challenging year for many associations and the world in general. It has forced associations to adjust to new procedures and ways of handling routine operations of the association. It is a year that will no doubt go down in history. But what is on the horizon for 2021, and what can associations do to best prepare for a successful, harmonious and safe year? The articles in this issue will provide helpful information for managers and associations as they plan for 2021. Ask yourself the following questions as you browse through the articles:
1
The year 2021 will no doubt see a rise in applications for accessory dwelling units. Are you prepared for this increase in applications, residents and vehicles?
2
Is your association prepared for your 2021 election, and is a timeline in place that complies with the requirements of Civil Code § 5105?
3
Has your association started to budget and plan for the inspection of balconies within your association so that compliance with Civil Code § 5551 can be met?
4
Hopefully the year 2021 will see far fewer protests, but is your association prepared to address members that express themselves in a disruptive or offensive manner?
5
Are your association’s rules and enforcement procedures effective in gaining member compliance or should revisions be made in the year 2021?
6
Has your association evaluated whether it should submit a notice of circumstance claim to its insurance carrier before its 2020 insurance policy expires?
Many thanks to all the authors that have contributed articles to this Winter issue. These articles provide valuable information on the above topics and will assist you in preparing for 2021. Thanks also to the CACM Law Journal Editorial Committee for their assistance and hard work. Be prepared, and best wishes for a healthy and safe 2021!
Theresa M. Filicia is a partner at Berding | Weil LLP and specializes in construction defect litigation. She’s worked in the industry for 33 years. cacm.org | The Law Journal Winter 2020 3
4 The Law Journal Winter 2020 | cacm.org
BALCONIES BALLOTS
&
2020 CHANGES ARE ALREADY AFFECTING THE BOTTOM LINE. By Robert Ward, Esq.
W
hen Governor Newsom signed Senate Bills 326 (the 2019 version of the “balcony bill”) and 323 (the “election” bill), he might not have understood the dramatic effect these two pieces of legislation would have on homeowner association governance. Not only are associations (and by extension their professional managers) now charged with ensuring compliance with these new laws, but the additional maintenance responsibilities for associations with respect to elevated walkways, balconies, and decks and election requirements are already taking their toll on budgets. Here’s what boards and managers need to know about the new requirements, and the fallout from the inclusion of these requirements in the ever-changing DavisStirling Act.
THE NEW (AND IMPROVED) BALCONY BILL (CAL. CIVIL CODE § 5551)
As of January 1, 2020, condominium associations with “exterior elevated elements” have to undertake a competent and diligent “visual” inspection of the loadbearing components and associated waterproofing systems of these elevated systems at least once every nine years. Exterior elevated elements are any woodframed walking surface improvements located at least six feet above ground. Balconies, decks, walkways, stairways, etc. that are either themselves wood-framed, or attached to wood-framing, all require inspection. These elements need to be inspected by either a duly licensed structural engineer or architectural expert no later than January 1, 2025.
That expert must submit an inspection report to the board that provides required information about the current physical condition of the component, the remaining useful life of the load-bearing components and waterproofing systems, and whether further testing should be done to assess any hazardous conditions suspected by the inspector. This report becomes a permanent part of the reserve study. Boards need to begin planning for these inspections now in order to get ahead of what will likely be a period of high demand for these inspections. Qualified architects and engineers, already in short supply, will be asked to perform these inspections in addition to their normal business activities. None will put their license on the line for a less than thorough inspection. Furthermore, these inspections will not come cheap. While the code specifies that these inspections are visual, the truth is that any proper assessment of the load-bearing components and waterproofing membrane of these elevated structures will require a statistically significant sample of exterior elevated elements be destructively tested. This will cost associations thousands of dollars in order to ensure compliance with the inspection requirements, not to mention the actual costs of making the repairs identified in their reports. So, as budgeting season approaches, managers and boards alike should consider setting aside funds now for these inspections and resultant repairs. Continues on page 6
cacm.org | The Law Journal Winter 2020 5
BALCONIES & BALLOTS,
Continued from page 5
THE NEW (AND NOT SO IMPROVED) ELECTION BILL (CAL. CIVIL CODE § 5105) Speaking of budgeting, the recently passed Election Bill (SB 323) changes the way director elections are run, which in turn is causing thousands of association boards to scramble to amend documents and revise policies. Briefly, the new rules, found in Cal. Civil Code § 5105, require the following:
and adopted, so if boards haven’t amended the election rules to comply yet, do so NOW.
ELECTION TIMELINE First of all, realize that no changes to election rules can be made within 90 days prior to an election. They have to be drafted, distributed
Remember that ballots, registration lists, and voting lists all must be retained as records. The voting list must have the name, voting power, and parcel number/address (or both) and
Select an inspector of elections and form a nominating committee if this is permitted in the by-laws. Note that no longer can the inspector be the manager or association’s attorney. Boards need to be educated that this will add some costs to the election process.
SEE IT FINISHED BEFORE YOU START.
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Civil Litigation Enforcement Insurance Coverage/ Bad Faith Construction Assessment Collections
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National Account Manager (714) 365-7427 | thoss@behr.com 6 The Law Journal Winter 2020 | cacm.org
voting rights may no longer be suspended for any reason other than being a non-member at the time of the election. If someone challenges the results in court, the association has the burden to show that any non-compliance didn’t affect the results, and the challenger can recover reasonable costs and fees.
QUALIFICATIONS Here are the “Mays” and “Musts.” 1. Associations may require candidates be paid up on their assessments, but can’t prohibit a candidate from running if fines, interest, or late charges are unpaid.
Begin early! The process for revising election rules and providing notice takes about four months and must be completed before the next election. Property managers are encouraged to advise their boards of these new requirements so that proper planning for these events can be discussed and calendared in the future.
2. If a payment plan has been worked out, a candidate may not be disqualified. 3. If a candidate has a joint ownership interest with another candidate or current standing director, they may be disqualified. 4. If there are past convictions for crimes that would jeopardize the association’s ability to secure fidelity bond insurance, they may be disqualified. 5. Finally, if a candidate is a member for less than one year, he/she may be disqualified. A candidate MUST be disqualified if the candidate is not a member of the association at the time of nomination. Also, be aware that the board can’t disqualify unless the candidate has been provided an opportunity to engage in IDR.
Robert Ward, Esq. of Riley Pasek Canty LLP specializes in construction defect claims and is based out of the firm’s San Diego office. He’s worked in the industry for 22 years.
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cacm.org | The Law Journal Winter 2020 7
BY MATT D. OBER, ESQ.
YOUR NEW NEIGHBOR IS ON YOUR LOT
LAYING THE FOUNDATION FOR ACCESSORY DWELLING UNITS IN COMMUNITY ASSOCIATIONS.
R
ecently, our Legislature paved the way for a “granny flat,” “in-law suite,”
or “backyard bungalow” on your private lot within a planned unit development community. Generally known as Accessory Dwelling Units or ADUs, this form of housing is a legal and regulatory term for a secondary house that shares the building lot of a larger, primary house. The ADU is a self-contained housing unit that provides for living, sleeping, cooking,
8 The Law Journal Winter 2020 | cacm.org
and sanitation. ADUs are
an entrance to the outside.
solar energy systems, electric
either attached to or detached
The JADU may also share
vehicle charging stations,
from the primary residence,
a bathroom with the main
drought-tolerant plants and
but provide completely
residence.
artificial turf, Civil Code § 4751
independent living facilities for
renders void or unenforceable
its occupants. The Junior ADU,
Cloaked with the good
any CC&Rs provision or deed
or “JADU”, is no more than
intentions of addressing
restriction in a planned
a 500-square-foot residence
California’s extreme housing
development that effectively
within a single-family home,
shortage and increasing
prohibits or unreasonably
but has both an entrance from
housing density, and modeled
restricts the installation of an
the main dwelling unit and
after similar laws addressing
ADU or JADU. Continues on page 10
cacm.org | The Law Journal Winter 2020 9
YOUR NEW NEIGHBOR, Continued from page 9
A COMMUNITY CAN IMPOSE REASONABLE RESTRICTIONS Although many view these new laws as unfair micromanagement negatively impacting an association’s regulation of parking, traffic, noise, and other issues characteristic of overcrowded communities, associations are not powerless. Adopting sensible architectural standards, aesthetic guidelines, and construction requirements for ADUs and JADUs are essential and perhaps the best way to welcome your new neighbor. The laws are unclear to the extent an association can offset the above burdens of an ADU, or even to what extent architectural guidelines cross into “unreasonable restriction” territory. At minimum, in order to be considered an ADU or JADU, the living space must meet the requirements of Government Codes 65852.2 and 65852.22, which includes obtaining formal approval by local agencies and compliance with applicable building codes.
NEW LEGISLATION SUPPORTS AND CODIFIES ADUS/JADUS New laws leave little doubt that gates of private residential community associations will remain wide open for the development of multiple residences on what was originally designed as a single-family residential lot. AB 3182 prohibits lease restrictions which limit rentals within a community to less than 25%. Civil Code § 4741 clarifies that if an owner occupies a portion of the property, the ADU or JADU is not to be considered occupied by a renter for purposes of that 25% rental restriction, and that any lot can have both an ADU and a JADU. Perhaps the most glaring indication of the law’s effort to promote ADUs/JADUs in our community is the amendment to Gov. Code 65852.2 mandating that any such application for a permit shall be deemed approved by the municipality if not acted on within 60 days.
BE PROACTIVE AND PREPARE The best protection for any community concerned about the impact of ADUs/JADUs is to be proactive. Adopt ADU/JADU-specific architectural rules addressing the aesthetic qualities and architectural elements that 10 The Law Journal Winter 2020 | cacm.org
will be acceptable for your particular community’s design and aesthetic standards. Among the subjects that a community should consider addressing in its rules are: • Review colors and architectural finishes to ensure that any ADU is designed and built in a manner that is architecturally consistent with the community. It is fair to expect that converted garages match the balance of the residence, and don’t have windows installed in the middle of garage doors. • Review landscape design standards to ensure that any ADU is designed and built to maintain consistent design standards, plant pallets and height restrictions. Make sure ADU applications include a landscape plan. • Review governing documents to determine impact of landscape maintenance easements and drainage/ erosion control on location and construction of ADU. • Consider the location of ADU/JADU within each lot and consider rules to limit the potential interference on neighboring owner’s privacy. • Determine whether your CC&Rs contain view restrictions and ensure that ADU/JADU design elements protect any existing view rights. • Review existing rental rules to make sure they expressly include occupants of ADU/JADU dwellings. • Be prepared to require any “prefab” structure to be modified architecturally to be consistent with community design elements and aesthetics. As with any new law that has the potential to significantly impact life in your community, we encourage boards to anticipate these issues before they arise and spend time now educating owners on what is expected before they proceed.
Matt D. Ober, Esq. is a partner of Richardson|Ober|DeNichilo where his practice is dedicated to the exclusive representation of community associations throughout California. He’s worked in the industry for more than 30 years.
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cacm.org | The Law Journal Winter 2020 11
N
NOTICE OF CIRCUMSTANCES THE INSURANCE CLAIM YOU NEED TO KNOW ABOUT.
Managers may be unaware of certain
that period. With a Notice of Circumstance
steps an association can take to protect its
tender, however, the association may
rights as it relates to an expiring insurance
preserve its rights before the policy period
policy. Often insurance policies have certain
ends and coverage, under that policy, is
reporting requirements to make a claim for
terminated.
a covered loss. These often state that claims
By Seema N. Kadaba and Cassie N. Holloway
for acts occurring during a policy period
If a Notice of Circumstance is tendered
must be made before the policy expires.
during the policy period and a claim is later asserted after the policy period has
However, many policies also contain
ended, but arising out of the circumstance
a provision known as a “Notice of
described in the Notice of Circumstance,
Circumstance.” This provision is often
then the insurer must treat the claim as
included as a way of extending coverage for
if it were timely made when the Notice of
events that may produce a claim at a later
Circumstances was tendered. The purpose
date, as long as the notice of the change
behind this is to allow an association to
in “circumstance” is given to the insurer
file an anticipated claim that may not
before the policy expires. This type of
come to fruition until the policy period is
notice is not a claim for money, but rather
over and the insurer adjusts the policy to
a claim to reserve the association’s rights
exclude what may have been covered in the
to later tender a claim under an expiring
previous policy.
policy when it does not have sufficient
12 The Law Journal Winter 2020 | cacm.org
information on whether its current situation
This is particularly applicable in current
will ripen into a formal claim.
times. At this moment, associations do not know what claims may arise against
WHY CONSIDER A NOTICE OF
it or the board related to the COVID-19
CIRCUMSTANCES CLAIM
pandemic. A claim could arise that the
If certain claims are not made by the date
board handled something incorrectly
when an insurance policy period ends,
during the pandemic and the association
the association will be prohibited from
should not lose the opportunity to file a
asserting those claims that occurred during
claim with the policy that may currently
cover the claim. The renewed policy will likely include new exclusions for pandemics, COVID-19, viruses in general, and/or government orders. In other words, it’s better to be safe than sorry.
At first glance, the insured may think it is impossible to comply with these reporting requirements. For example, let’s say the
THE WAY YOU REPORT YOUR CLAIM MATTERS
association discovers that a resident of the
When drafting a Notice of Circumstances, the notice must contain
community contracted COVID-19, and that
sufficient information regarding the claims an association believes might be asserted against them. In other words, does the notice provide adequate information to the insurer that a court would deem sufficient? The first thing you should do is determine your association’s Notice of Claim reporting provisions in your policy or policies. This will help you
same resident was at the community pool just one week prior. Although this resident has not sued the association yet, the association is concerned that a lawsuit will
determine what information your insurer requires to be included in
be filed since the resident could claim she
the notice. A Notice of Claim reporting provision could require that the
contracted the virus while at the community
insured specify all of the following:
pool. This lawsuit, you anticipate, might
a. the specific wrongful act,
happen after the policy expires, even though
b. the damages which have or may result from such wrongful
the resident was at the pool during the
act, and c. the circumstances by which you first became aware of such wrongful act.
period of the current policy. Continues on page 14
cacm.org | The Law Journal Winter 2020 13
NOTICE OF CIRCUMSTANCES, Continued from page 13
With this in mind, associations should seek counsel and gather facts, documents, and any other evidence that might be considered
At this moment, associations do not know what claims may arise against it or the board related to the COVID-19 pandemic.
an anticipated claim and consider whether it is prudent to file a Notice of Circumstance. Please note that it is important to send the Notice of Circumstance before the end of the policy period of the current insurance, because it is extremely likely that insurance companies will radically change certain coverages and add more exclusions to coverage in the new policy, given the COVID-19 pandemic.
Using the COVID-19 example, the “specific wrongful act” would be that a person may have contracted COVID-19 while they were on association property – the pool. The “damages” that “may result” would be any injuries that the person incurred due to contracting COVID-19 on the premises. And, the “circumstances by which you first became aware of such wrongful act” would be when the association discovered that a resident may have contracted COVID-19 while being at the community pool for which there is a potential claim. As you can see, as long as you can comply with your carrier’s reporting provision and you can provide your insurance carrier with sufficient notice of the potential claim your association foresees happening after the policy expires, the notice will likely be sufficient.
Seema N. Kadaba and Cassie N. Holloway specialize in construction defect litigation at Berding|Weil LLP. Kadaba works out of the firm’s Bay Area office and has been in the industry for five years. Holloway works out of the San Diego office and has worked in the industry for two years.
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Employing Enforcement Strategies with CC&Rs BY LAURIE S. POOLE, ESQ.
It
is not unusual for board members to ask whether they can adopt a certain rule or CC&R provision. However, one of the questions that needs to be asked
is whether the association will be able to enforce that new rule or provision. The ability to enforce an association’s governing documents is as important
The ability to enforce an association’s governing documents is as important as having rules to enforce.
as having rules to enforce. When thinking about enforcement, boards and managers need to remember what the goal is – gaining the member’s compliance. In furtherance of that goal, employing an enforcement strategy is
cost-effective than amending the CC&Rs. Adopting or amending the enforcement policy needs to be done in conformance with Civil Code §4360, requiring that members be provided with general
key.
notice of a proposed rule change.
The first place to start is understanding the
What should be included in the enforcement
association’s scope of enforcement. Review the language in the CC&Rs to be sure the association can adopt rules covering conduct in the common area, as well as actions within the member’s separate interests. Many violations, such as noise, originate in an owner’s home. Ideally, the language in the CC&Rs should give broad authority for the board to adopt rules concerning the entire development, as well as the ability to enforce those
policy? Important concepts include: HOW VIOLATIONS WILL BE REPORTED TO THE ASSOCIATION. Typically, owners and residents report violations directly to the association. The policy should state that reported violations need to be in writing and anonymous reports will not be considered. Other methods of reporting violations can include noting
rules.
violations during “walkthroughs.”
Essential to developing an enforcement strategy
ENFORCEMENT PROCEDURES.
is having an enforcement policy. The policy can either be part of the association’s rules and regulations, or a stand-alone document. It should not be part of the CC&Rs since the policy will contain specific information that may need to be changed from time-to-time. Being able to make changes through the rule amendment procedure
The procedures should include having the board or management investigate the alleged violation, sending notification to the responsible owner(s), imposing discipline, and initiating legal action. Generally, enforcement starts mildly such as sending a “courtesy notice” and increases in consequences if the member doesn’t comply. The
without a membership vote is more efficient and Continues on page 16
cacm.org | The Law Journal Winter 2020 15
Enforcement Strategies,
Having an enforcement POLICY is essential to developing an enforcement STRATEGY.
Continued from page 15
policy should give the board flexibility to take different steps, depending on the severity of the violation. For instance, a courtesy notice may be too “tame” for violations that are more urgent in nature. Rather, a cease and desist letter from legal counsel may be a starting point for more egregious violations.
reasonable. Generally, a range of amounts
DUE PROCESS – PRIOR NOTIFICATION
for each violation (first, second, third) is a
AND HEARING.
IMPOSING DISCIPLINE.
good approach, with each fine increment
Civil Code §5855 requires that before
increasing. How about continuous or daily
disciplinary action can be imposed,
fines? Boards need to understand imposing
including monetary charges, the member
fines is not a source of revenue. Rather, the
must be provided notification and an
objective is to gain member compliance. If
opportunity to be heard by the board. The
a member does not change their behavior
statute states that such notice needs to be
after one or two fines have been imposed,
given at least 10 days before the hearing.
rather than continuing to apply fines,
However, if the association’s governing
associations should consider alternate
documents require a longer time frame,
enforcement approaches, such as sending
consult with legal counsel as to which time
a letter from legal counsel, inviting the
period to use.
Crucial to any enforcement strategy is imposing discipline on violating members. Disciplinary measures may include monetary fines, suspending use of common facilities, or even disabling non-essential services such as cable TV. If monetary fines are going to be imposed, Civil Code §5850 requires that a schedule of the monetary penalties be provided to each member. The schedule must also be included in the annual policy statement distributed pursuant to Civil Code §5310. Monetary fines need to be effective, yet
member to internal dispute resolution (IDR), or initiating alternative dispute resolution
HEARING PROCEDURES.
(ADR).
The enforcement policy should include
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the procedures for how the hearing will be
a board has exhausted fining, suspension
held. Common questions are whether the
of member privileges and other non-legal
member is entitled to see the complaint
remedies, it is time to consider sending a
or other evidence that has been compiled
letter from legal counsel, offering IDR and/
against them and whether they can bring
or ADR. Often, compliance is achieved
witnesses. There are differing legal opinions
once the member realizes legal counsel
regarding those issues, so boards should
is involved. Also, since a hearing is viewed
consult with legal counsel. Addressing
as an adversarial proceeding, sitting down
those matters in the enforcement policy will
with the member in an IDR meeting to
set expectations whatever decision is made.
express views and work in good faith to
The board will need to notify the member of
resolve a dispute can have effective results.
the decisions made within 15 days after the hearing.
Effective enforcement requires governing document support and employing a
INITIATING LEGAL PROCEDURES.
strategy to reach the goal – member
Key to an enforcement policy is knowing
compliance.
when to initiate legal proceedings. Once
Once a board has exhausted fining, suspension of member privileges and other non-legal remedies, it is time to consider sending a letter from legal counsel
Laurie S. Poole, Esq. is a managing partner of Adams|Stirling, PLC with offices in San Diego, the Inland Empire and the Desert. The majority of her practice involves interpreting and amending governing documents, advising boards on compliance matters, addressing governance and insurance issues, and enforcement of governing documents. She’s worked in the industry for 27 years.
cacm.org | The Law Journal Winter 2020 17
What Can I Say? EXERCISING FIRST AMENDMENT RIGHTS IN COMMUNITY ASSOCIATIONS. By Brittany A. Ketchum, Esq.
W
e the people of the United States
residents, preserving property values and
have fundamental constitutional
enforcing the governing documents.
rights, including freedom of
speech, the right to peaceably assemble,
REGULATING SPEECH
and the right to post certain flags and
“Speech” includes writings and other
banners. Both the First Amendment and
publications, such as signs, banners, posters
California’s Constitution protect these
and flags displayed on a member’s separate
rights against government interference by
interest, as well as social media and other
prohibiting laws that infringe upon these
internet posts. Not all speech is protected.
freedoms. Community associations, as
Nor are associations required to tolerate
private entities, are typically not subject
defamatory, obscene and harassing speech,
to these constitutional protections.
or speech that would incite hatred, violence
However, boards do not have unfettered
or harm. A board, management, staff and
power to suppress all speech within the
other vendors may take legal action against
community.
defamatory speech, which consists of false statements, spoken or written, published by
Generally, boards have power to adopt
residents. Although a member’s complaint
“reasonable” operating rules for the
made in open forum during a board
community. An “unreasonable” rule is one
meeting about management’s performance
defamatory, obscene
that is arbitrary and capricious, violates
may not rise to the level of defamation, a
and harassing speech, or
the law or a fundamental public policy or
statement that is untrue and damages the
imposes an undue burden on property.
manager’s reputation is actionable.
Associations are not required to tolerate
speech that would incite hatred, violence or harm.
18 The Law Journal Winter 2020 | cacm.org
Because a rule that unreasonably burdens a fundamental constitutional right is void
Community associations should adopt a
and unenforceable, community leaders
code of conduct setting forth the rules
must balance these constitutional rights
and regulations for meetings. Such a code
with community association interests,
can require members be respectful to one
such as promoting the health and safety of
another and to the board, officers, manager,
and other attendees; require member
Boards can prohibit
comments avoid disruptive behavior,
signs, posters, flags
profanity, personal or verbal attacks or harassment; and require members to behave courteously and refrain from
and banners that are
using threatening, intimidating or abusive
defamatory, obscene
language. A code of conduct may be adopted by the board as an operating rule,
and harassing, or that
providing the board authority to impose
would incite hatred,
discipline (such as fines and suspension
violence or harm.
of common area amenity privileges, if
purposes. Additionally, associations cannot prohibit members and residents from canvassing and petitioning the community or from distributing or circulating (without prior permission) information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members and residents. An association is liable for a civil penalty of
permitted by the governing documents)
not more than five hundred dollars ($500)
against any member found to be in
for each violation for preventing members
violation of the adopted code.
and residents from engaging in any of the
Harassing language or behavior is another type of speech that should not be tolerated. Harassment includes unlawful violence such as assault, battery or stalking, or a credible threat of violence. Harassing emails, phone calls and other communications to management may be actionable if a pattern of conduct can be established. At a minimum, the board can revoke a harassing resident’s right to communicate with the association by email or telephone, unless in the event of emergency.
SIGNS, POSTERS, FLAGS AND BANNERS The law is also clear that members (including condominium owners) have the right to display noncommercial signs, posters, banners and flags, including the United States flag and flags of other countries, unless they create a risk to public health or safety or if it would violate a local, state, or federal law. Pursuant to Civil Code § 4710, a protected noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the home or property, but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.
However, like other speech, boards can prohibit signs, posters, flags and banners that are defamatory, obscene and harassing, or that would incite hatred, violence or harm. Boards may also adopt reasonable rules governing the time, manner and place of such protected signs. Many associations adopt rules limiting the number of signs that may be displayed, but
foregoing activities. Boards may, however, adopt rules per Civil Code § 4515 that require the foregoing activities be done in a reasonable manner and during reasonable hours. Boards would do well to understand members’ First Amendment Rights when making and enforcing their rules.
the number must be reasonable and may depend on the size of the home and nature of the sign. Associations can also adopt rules prohibiting noncommercial signs and posters that are more than nine square feet in size and noncommercial flags or banners that are more than fifteen square feet in size. Certain “commercial” signs are also protected under the law, including signs that advertise the property for lease or sale or advertise directions to the property, so long as the signs are reasonably located and are of reasonable dimensions and design, and do not adversely affect public safety, including traffic safety.
PEACEFUL ASSEMBLY Members and other residents cannot be prohibited from peacefully assembling, meeting or using the common area (without paying a fee or deposit, and without obtaining liability insurance, or paying the premium or deductible on the association’s insurance policy) for purposes relating to common interest development living or for social, political, or educational
Brittany A. Ketchum, Esq. is an associate attorney with Beaumont Tashjian, where she provides general counsel services to the firm’s clients.
cacm.org | The Law Journal Winter 2020 19
2020 LEGAL DIRECTORY ASSESSMENT COLLECTION SERVICES ALLIED TRUSTEE SERVICES Assessment Collection & Judgment Recovery Services Stefan Murphy Serving All of California For Over 27 Years 990 Reserve Dr., Ste. 208 Roseville, CA 95678 (800) 220-5454 smurphy@alliedtrustee.com alliedtrustee.com ALTERRA ASSESSMENT RECOVERY Assessment Collection Services Steven J. Tinnelly, Esq. Your Association’s Assessment Collection Partner 27101 Puerta Real, Ste. 250 Mission Viejo, CA 92691 (888) 818-5949 ramona@tinnellylaw.com alterracollections.com FELDSOTT & LEE, A LAW CORPORATION Community Association Law Stanley Feldsott, Esq. Laguna Hills | San Diego 23161 Mill Creek Dr., Ste. 300 Laguna Hills, CA 92653 (949) 729-8002 • Fax (949) 729-8012 feldsott@gmail.com cahoalaw.com
20 The Law Journal Winter 2020 | cacm.org
FIORE RACOBS & POWERS, A PLC Community Association Law and Assessment Collections Jacqueline D. Foster, Esq., Peter E. Racobs, Esq., & John R. MacDowell, Esq. The Recognized Authority in Community Association Law Orange County | Inland Empire | Coachella Valley l San Diego County (877) 31-FIORE • Fax (949) 727-3311 dweissberg@fiorelaw.com fiorelaw.com UNITED TRUSTEE SERVICES Trusted Partners In Assessment Collections Lisa E. Chapman Trusted Partners in Assessment Collections 696 San Ramon Valley Blvd., Ste. 353 Danville, CA 94526 (925) 855-8554 • Fax (925) 855-8559 lisa@unitedtrusteeservices.com unitedtrusteeservices.com
ATTORNEYS BEAUMONT TASHJIAN General Counsel and Assessment Collection Services Jeffrey A. Beaumont and Lisa A. Tashjian Woodland Hills, Laguna Hills, San Luis Obispo, Palm Desert, San Diego 21650 Oxnard St., Ste. 1620 Woodland Hills, CA 91367 (866) 788-9998 • Fax (818) 884-1087 info@HOAattorneys.com hoaattorneys.com BERDING | WEIL Construction Defect Litigation, General Counsel and Community Association Law Steve Weil | Tyler Berding l Chad Thomas | Andrea O’Toole Walnut Creek | Costa Mesa | San Diego 2175 N. California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com BerdingWeil.com CHAPMAN & INTRIERI, LLP General Counsel & Construction Defect Litigation John W. Chapman, Esq. & Mark G. Intrieri, Esq. Alameda l Roseville l Orange County l San Diego 2236 Mariner Square Dr., Ste. 300 Alameda, CA 94501 (510) 864-3600 • Fax (510) 864-3601 jchapman@cnilawfirm.com cnilawfirm.com COMMUNITY LEGAL ADVISORS, INC. General Counsel & Assessment Collections Mark Guithues, Esq. & Mark Allen Wilson, Esq. Inland Empire | Orange County | San Diego 509 N. Coast Hwy. Oceanside, CA 92054 (760) 529-5211 • Fax (760) 453-2194 mark@attorneyforhoa.com attorneyforhoa.com DELPHI LAW GROUP, LLP Attorneys James R. McCormick, Jr., Esq., CCAL Coachella Valley | Inland Empire | Los Angeles | Orange County | San Diego 1901 Camino Vida Roble, Ste. 100 Carlsbad, CA 92008 (844)- 4DELPHI • Fax (760) 820-2696 jmccormick@delphillp.com DelphiLLP.com
EPSTEN, APC Community Association Law, Construction Defect, Litigation & Assessment Recovery Jon Epsten, Esq. & Susan Hawks McClintic, Esq. San Diego | Inland Empire | Coachella Valley 10200 Willow Creek Rd., Ste. 100 San Diego, CA 92131 (858) 527-0111 • Fax (858) 527-1531 jepsten@epsten.com epsten.com
THE JUDGE LAW FIRM Collection services, general counsel and mediation James A. Judge, Esq. Arbitrators & Mediators, Assessment Collection Services 18650 MacArthur Blvd., Ste. 450 Irvine, CA 92612 (949) 833-8633 • Fax (949) 833-0154 info@thejudgefirm.com thejudgefirm.com
FIORE RACOBS & POWERS, A PLC Community Association Law and Assessment Collections Jacqueline D. Foster, Esq., Peter E. Racobs, Esq., & John R. MacDowell, Esq. The Recognized Authority in Community Association Law Orange County | Inland Empire | Coachella Valley l San Diego County (877) 31-FIORE • Fax (949) 727-3311 dweissberg@fiorelaw.com fiorelaw.com
KRIGER LAW FIRM Community Association Law and Assessment Collections Bradley Schuber, Esq. 8220 University Ave., Ste. 100 La Mesa, CA 91942 (619) 589-8800 • Fax (619) 589-2680 bschuber@krigerlawfirm.com krigerlawfirm.com
GURALNICK & GILLILAND, LLP Association Law, Assessment Collections, General Counsel Wayne S. Guralnick, Robert J. Gilliland Jr. Serving Community Associations for Over 30 Years 40004 Cook St., Ste. 3 Palm Desert, CA 92211 (760) 340-1515 • Fax (760) 568-3053 wayneg@gghoalaw.com gghoalaw.com HICKEY & ASSOCIATES, P.C. Community Association Law David E. Hickey, Esq. 27261 Las Ramblas, Suite 120 Mission Viejo, CA 92691 (949) 614-1550 • Fax (949) 748-3990 dhickey@hickeyassociates.net HickeyAssociates.net HUGHES GILL COCHRANE TINETTI, PC Community Association & Construction Defect Law Michael J. Hughes, Esq., John P. Gill, Esq., Amy K. Tinetti, Esq. Complete representation of community associations 2820 Shadelands Dr., Ste. 160 Walnut Creek, CA 94598 (925) 926-1200 • Fax (925) 926-1202 atinetti@hughes-gill.com hughes-gill.com
THE MILLER LAW FIRM Construction Defect Analysis & Litigation Thomas E. Miller, Founding Partner, Rachel M. Miller, Senior Partner Serving Homeowners Associations Statewide for Over 40 Years San Francisco | Bay Area | LA | Orange County | San Diego| Inland Empire (800) 403-3332 rachel@constructiondefects.com constructiondefects.com PRATT & ASSOCIATES, APC Community Association Law Sharon Glenn Pratt Los Gatos, CA 634 North Santa Cruz Avenue, Suite 204 Los Gatos, CA 95030 (408) 369-0800 • Fax (408) 369-0752 spratt@prattattorneys.com prattattorneys.com RAGGHIANTI FREITAS LLP Community Association Law, Construction Defects & Mediation David F. Feingold, Esq. & Matthew A. Haulk, Esq. Serving Bay Area Communities Since 1986 1101 Fifth Ave., Ste. 100 San Rafael, CA 94901 (415) 453-9433 • Fax (415) 453-8269 dfeingold@rflawllp.com rflawllp.com
Continues on page 22
cacm.org | The Law Journal Winter 2020 21
2020 LEGAL DIRECTORY, Continued from page 21
RICHARDSON OBER DENICHILO Community Association Law, General Counsel, Assessment Recovery Kelly Richardson, Matt Ober, Robert DeNichilo Throughout California 234 E. Colorado Blvd., Ste. 800 Pasadena, CA 91101 (877) 446-2529 matt@rodllp.com rodllp.com SWEDELSONGOTTLIEB Community Association Law, Construction Defect, Assessment Collection David C. Swedelson, Esq. & Sandra L. Gottlieb, Esq. Los Angeles | Orange County | Palm Desert | San Francisco l Ventura 11900 W. Olympic Blvd., Ste. 700 Los Angeles, CA 90064 (800) 372-2207 • Fax (310) 207-2115 slg@sghoalaw.com awforhoas.com TINNELLY LAW GROUP Community Association Law Richard A. Tinnelly, Esq. & Steven J. Tinnelly, Esq. Orange County | Los Angeles | Palm Desert | San Francisco | San Diego 27101 Puerta Real, Ste. 250 Mission Viejo, CA 92691 (949) 588-0866 • Fax (949) 588-5993 ramona@tinnellylaw.com tinnellylaw.com WHITE & MACDONALD, LLP Community Association Law, Construction Defect Law Steven M. White, Esq., Rob D. MacDonald, Esq. & James P. Hillman, Esq. Cost Effective Solutions Based On Experience 1530 The Alameda, Ste. 215 San Jose, CA 95126 (408) 345-4000 • Fax (408) 345-4020 info@wm-llp.com wm-llp.com WHITNEY PETCHUL APC General Counsel Dirk Petchul, Esq. / Fred Whitney, Esq. 27 Orchard Lake Forest, CA 92630 (949) 766-4700 • Fax (949) 766-4712 info@whitneypetchul.com whitneypetchul.com
22 The Law Journal Winter 2020 | cacm.org
WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Community Association Law Michael W. Rabkin, Esq. 11400 W. Olympic Blvd., 9th Floor Los Angeles, CA 90064 (310) 478-4100 • Fax (310) 479-1422 mrabkin@wrslawyers.com wrslawyers.com
CONSTRUCTION DEFECT ANALYSIS BERDING | WEIL Construction Defect Litigation, General Counsel and Community Association Law Steve Weil | Tyler Berding l Chad Thomas | Andrea O’Toole Walnut Creek | Costa Mesa | San Diego 2175 N. California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com BerdingWeil.com FENTON GRANT MAYFIELD KANEDA & LITT, LLP Construction Defect Litigation & CID Education Charles R. Fenton, Esq. & Joseph Kaneda, Esq. California & Nevada 2030 Main Street, Ste. 550 Irvine, CA 92614 (877) 520-3455 • Fax (949) 435-3801 cfenton@fentongrant.com fentongrant.com THE MILLER LAW FIRM Construction Defect Analysis & Litigation Thomas E. Miller, Founding Partner, Rachel M. Miller, Senior Partner Serving Homeowners Associations Statewide for Over 40 Years San Francisco | Bay Area | LA | Orange County | San Diego | Inland Empire (800) 403-3332 rachel@constructiondefects.com constructiondefects.com
THE NAUMANN LAW FIRM, PC Construction Defect Litigation William H. Naumann, Esq. Los Angeles | Orange County | San Diego | Riverside | San Bernardino 10200 Willow Creek Road, Ste. 150 San Diego, CA 92131 (844) 492-7474 • Fax (858) 564-9380 elaine@naumannlegal.com naumannlegal.com
RESERVE STUDY FIRMS ASSOCIATION RESERVES Reserve Study Firm Carol Serrano Reserve Studies for Community Associations 6700 Fallbrook Avenue, Suite 255 West Hills, CA 91307 (800) 733-1365 cserrano@reservestudy.com reservestudy.com THE HELSING GROUP, INC. Reserve Study Firm Ryan Leptien Serving All of California 4000 Executive Pkwy., Ste. 100 San Ramon, CA 94583 (925) 355-2100 • Fax (925) 355-9600 reservestudies@helsing.com helsing.com SCT RESERVE CONSULTANTS Reserve Study Firm Mike Graves, RS Finding Solutions, maintaining Communication, and providing Triage P.O. Box 890129 Temecula, CA 92589 (951) 296-3520 • Fax (951) 296-5038 info@sctreserve.com sctreserve.com
VENDOR COMPLIANCE ASSOCIATION SERVICES NETWORK Vendor Compliance David Jeranko Vendor Compliance & Risk Management 24000 Alicia Pkwy., Ste. 17-442 Mission Viejo, CA 92691 (949) 300-3702 • Fax (877) 404-2008 davidj@asn4hoa.com asn4hoa.com
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