SPRING 2021
PARKING PAIN:
How to handle increased traffic and violations PAGE 12
WHAT TO KNOW
BEFORE YOU TOW
ADDRESSING RETALIATION:
Handling pushback from boards and owners PAGE 6
PAGE 8
LEGISLATIVE UPDATE:
RENTAL RESTRICTIONS PAGE 4
SENATE BILL 908:
What does it mean for associations? PAGE 10
Spring 2021
A PRACTICAL REVIEW OF COMMUNITY MANAGEMENT LAW
2021 CACM Spring Law Journal Editorial Committee Chief Editor Attorney Guest Editor
Fred Whitney, Esq. Whitney | Petchul Dyanne L. Peters, Esq. Delphi Law Group, LLP
Spring Journal Committee Members Theresa Filicia, Esq. Berding | Weil LLP
Marne Logan, CCAM-LS The Management Trust – California Desert, ACMC
Mark Guithues, Esq. Community Legal Advisors, Inc. Alex Sohal Adams | Stirling PLC Eric Kazakoff, CAMEx, CCAM Canyon Lake POA
Jill Morgan, CCAM Allure Total Management Hamlet Vazquez, MCAM-HR Action Property Management, ACMC Sarah Van Daele, CCAM Katzakian Property Management, LTD
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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2 The Law Journal Spring 2021 | cacm.org
Letter from the Guest Editor
T
he theme of this spring issue is “Planning Ahead.” After a year that brought on new and unprecedented challenges associated with navigating a world-wide pandemic and “stay at home” orders, we are looking optimistically for 2021 to usher in a fresh start. This edition examines issues that the committee believes to be important to address in this new year and to provide information to managers and associations looking to stay ahead of some challenges presented over the last year. Specifically, an unintended consequence of the “stay at home” orders are a rise in the number of vehicles being parked and increased traffic within communities. Now
is an ideal time for associations to consider reviewing their vehicle restrictions and towing policy to determine whether they are in conformance with current law, or whether restrictions need to be relaxed (or strengthened) to address the current circumstances. Two of the articles in this issue address these concerns. Another unexpected side effect of the pandemic has been a rise in irritable owners. Whether these owners are anxious or upset given the situation, there seems to be a rise in antagonistic owners whose aggravations are directed at managers. One of the articles in this edition discusses this problem and provides strategies for managers to stay ahead of any retaliation or push back received from boards or owners.
Finally, this issue examines two legislative bills affecting associations that became effective in January 2021: AB 3182, which addresses rental restrictions in associations, and SB 908, which requires licensing for debt collectors. The Committee would like to thank the authors for tackling these issues and providing resources and guidance for managers and owners looking to “plan ahead” in 2021.
Dyanne L. Peters, Esq. is an attorney with Delphi Law Group, LLP. She’s worked in the industry for four years and services San Diego, Orange County, Los Angeles, Riverside and the Desert.
cacm.org | The Law Journal Spring 2021 3
3182 LEGISLATIVE UPDATE: AB 3182
RENTAL RESTRICTIONS O
ver the past few years, the State Legislature has been adopting laws
that diminish the power of homeowner associations to determine what is best for their communities, and 2020 was no different. Assembly Bill 3182 (AB 3182) hampers the ability of associations to restrict rentals in their communities. AB 3182 took
news is that many other types of rental restrictions are now unenforceable, and associations must take immediate action to amend their governing documents to remove voided provisions, or face damages and penalties.
BACKGROUND AND OVERVIEW
effect on January 1, 2021.
Over the years, California courts have
The good news is that associations may
associations to reasonably regulate rentals
still impose certain rental caps and prohibit short-term rentals (30 days or less). The bad
4 The Law Journal Spring 2021 | cacm.org
consistently upheld the authority of in their communities. In 1981, a court recognized the need to promote the
BY MICHAEL J. ALTI, ESQ.
health, happiness and peace of mind of homeowners, which is why “it is essential to successful condominium living and the maintenance of the value of these increasingly significant property interests that the owners as a group have the authority to regulate reasonably the use and alienation of the condominiums” (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal. App.3d 670, 682). AB 3182 chips away at this established authority of associations. It amends Civil
Code Section 4740 and adds a new Section
that renters and leases be subject to the
4741. Most notably, Civil Code Section 4741(a)
governing documents, and make the owner
voids any provision of a governing document
responsible for remedying rule violations.
that “prohibits, has the effect of prohibiting, or unreasonably restricts the rental or leasing of any of the separate interests, accessory
ADU/JADU
Last year, the Legislature passed AB 670 to
dwelling units, or junior accessory dwelling
remove barriers to constructing accessory
units in that common interest development.”
dwelling units (ADU) and junior accessory dwelling units (JADUs) in HOAs (particularly
This means that associations may not
planned developments). Now, AB 3182 states
prohibit or unreasonably restrict rentals in
that ADUs and JADUs may not be counted
their communities and under Section 4741(c),
as rented for purposes of a rental cap, as
there is an argument that minimum lease
long as the owner continues to occupy the
terms exceeding 30 days may be considered
primary residence. Provisions relating to
unreasonable.
ADUs/JADUs should be considered as part of
SHORT TERM RENTALS
AVOID LEGAL CHALLENGES AND LIABILITY ASSOCIATED WITH LEASING 1. Immediately passing a new rule to address voided provisions 2. Amending the CC&Rs to correct conflicting provisions or impose those permitted by law.
a review of governing documents.
AMENDING GOVERNING DOCUMENTS
RECOMMENDATIONS
Short-term rentals (such as Airbnb vacation
do not comply with the new law, such as,
and rules and have legal counsel assist
rentals) have been a problem throughout
arguably, where CC&Rs contain a 6-month
California. If the association desires to enact
or 12-month lease term requirement, or
restrictions on short-term rentals and their
a rental cap below 25%. Besides voiding
CC&Rs are silent as to a minimum lease term,
such provisions, AB 3182 requires that “a
in that scenario, an association could simply
common interest development shall amend
adopt a rule banning them.
their governing documents to conform to
AB 3182 contains an exception that explicitly allows communities to prohibit shortterm rentals with a term of 30 days or less.
RENTAL CAPS
Many communities will find that their CC&Rs
the requirements of this section no later than December 31, 2021.” The failure to do
It is imperative that boards immediately review rental restrictions in their CC&Rs in determining whether they remain enforceable or require amendment. If so, then AB 3182 requires you to update your governing documents. Depending on the situation, options include: (1) immediately passing a new rule to address voided provisions (short-term rentals usually can be regulated with a rule) and (2) amending the CC&Rs to correct conflicting provisions
AB 3182 also allows associations to impose
so would subject an association to actual
rental restrictions limiting the total number
damages and a civil penalty of $1,000.
or impose those permitted by law. Doing so
in the community (i.e., a rental cap). This
AB 3182 does not explain how governing
associated with leasing.
allows communities to remain eligible for
documents should be amended. The
loans from government agencies such as
Legislature failed to acknowledge the
the Federal Housing Authority and Veterans
challenges, costs, and time involved in
Administration. Rental caps lower than 25%
obtaining the required approval of members
are void and unenforceable. Associations
and lenders for an amendment. If your
must amend their governing documents to
CC&Rs do not already contain language
remove voided rental caps (for example, a
allowing the board to unilaterally amend
rental cap of 10%).
them to conform to changes in the law,
of rentals to 25% or higher of the homes
OTHER TYPES OF RESTRICTIONS
will help avoid legal challenges and liability
some firms take the position that boards may still do so given the clear legislative
AB 3182 does not specifically state what
directive – as long as the amendment
other types of rental restrictions would
is limited to revising the unenforceable
be permitted under the new law. Some
language and does not impose any new
professionals in the industry believe that
restriction. Other firms are of the opinion
owner-occupancy restrictions (such as that
that CC&R amendments must still undergo
a buyer must occupy the home for the first
the typical membership approval process
year) are now void. Likewise, an association
and a possible court petition if approval is
can no longer require that an owner obtain
not obtained. Since there is no consensus,
board approval before renting. However,
the association should seek advice from
associations may continue to require
their legal counsel before proceeding.
Michael J. Alti, Esq. is an attorney specializing in community association law, land use and zoning, and environmental law with Community Legal Advisors. He’s worked in the industry for 10 years and services Orange and San Diego counties.
cacm.org | The Law Journal Spring 2021 5
RETALIATION AGAINST MANAGERS
Everyone in the common interest development industry recognizes the difficult nature of being a property manager. On a daily basis, managers are put under enormous amounts of pressure to address their communities’ needs. In recent years, that pressure has included a rise in board and owner push-back against their advice, online campaigns deriding their ability and ethics, and even lawsuits. While it may be impossible to avoid upsetting some people, managers should at the very least understand the tools at their disposal to combat these retaliatory acts. The first line of defense in every contractual relationship is the contract itself. Management contracts should define the relationship as specifically as possible. The provisions of the contract ideally define the roles and actions of the parties, including: (i) termination – both the timeframe for each party to terminate the contract, and the method of notice to each party; (ii) non-renewal – whether the association or the manager needs to advise the other party of an intent not to renew the contract on an annual basis, and the timeframe and method of notice to each party; (iii) what occurs upon an alleged breach – whether the parties must engage in dispute resolution (i.e. mediation or arbitration), the method of notice to each party, and a provision regarding potential attorney’s fees; (iv) limits to the parties’ liability to one another; (v) insurance provisions; and (vi) an indemnity provision.
TIPS AND STRATEGIES FOR MANAGERS TO ADDRESS PUSH BACK FROM BOARDS AND HOMEOWNERS. By Garrett Wait
Hold harmless and indemnity provisions must be in every management contract and owners who wish to sue the manager should be advised that the association will likely be responsible for costs. This means, indirectly, through the payment of assessments, the owner will be essentially paying the legal costs of the association’s defense. This can be a significant deterrent to litigious owners. Strengthening your management contract language will not solve every problem related to board and owner pushback. When an association’s board fails to follow its manager’s advice, the manager would be wise to document everything. Managers should ensure that his or her recommendation and the board’s subsequent refusal to abide by the recommendation
6 The Law Journal Spring 2021 | cacm.org
Remember, the written word is powerful in many ways. Communications should be in writing and written notes should be made of conversations that have a reasonable chance of being the source of a dispute. is documented in writing. For example,
legal representation to analyze the need for
litigation, it is always wise to keep detailed
confirm via email that you advised X and
a cease and desist letter or even a lawsuit.
contemporaneous notes, but it is especially
board decided to do Y. It may also help to
critical when disputes begin to escalate
remind the board on a frequent basis that
Managers should protect themselves
it has a fiduciary obligation to members
against false and misleading claims through
that does not necessarily extend to
proactive measures designed to create
Remember, the written word is powerful
management. Indeed, certain breaches
a clear and accurate record of events.
in many ways. Management contracts will
could lead to personal liability of directors.
Generally, emails should be preferred over
control and protect you from liability if
Boards who often ignore management
telephone calls because a written record is
properly drafted. Communications should
advice are often the boards that find
far more helpful than relying on your own
– when possible – be in writing and written
themselves in trouble.
recollection. Another way to be proactive
notes should be made of conversations
is to keep detailed and accurate minutes
that have a reasonable chance of being
Avoiding litigation is always preferable,
of board meeting discussions, advice from
the source of a dispute. Finally, under most
of course, so prior to litigation it is critical
the manager or other expert, if any, and the
circumstances, the manager’s agency
that the manager effectively communicate
board’s ultimate decision.
relationship will not create pass-through
to the board and the membership that
beyond a simple disagreement.
liability if the board refuses to follow his or
he or she is working in a team-based and
Managers should never allow a claim or
collaborative environment. Boards and
threat of litigation go without a written
managers can usually avoid significant
response. In one recent example, a highly
conflict so long as everyone understands
combative director called a manager
that while there may be disagreements,
and said he would need to escalate an
managers are working for the betterment of
otherwise benign matter to litigation as a
the community as a whole.
bluff. The manager rightly responded via
her advice.
email advising the board member of the When homeowners decide to make
need to discuss with rest of the board if his
harmful statements about management
threat was serious. The contentious director
on Yelp, Google reviews, or through other
quickly backed down.
social media campaigns, managers should be prepared to professionally set the
Managers should carry adequate insurance
records straight or ask those companies
and should tender a claim when he or she
to remove harmful reviews. In some cases,
“reasonably suspects” a dispute will be
the reviews or statements on social media
escalated to litigation. Not every threat
can be potentially defamatory, depending
is legitimate, and not every owner or
on how they are written, but watch out
board actually wants to sue, so use good
for potential SLAPP liability. Under those
judgment about the prospects of a lawsuit
circumstances, managers should contact
before tendering a claim. Even prior to
Garrett Wait is a Senior Associate with Kriger Law Firm specializing on community association law. He’s worked in the industry eight years.
cacm.org | The Law Journal Spring 2021 7
IN ADDITION TO COMPLYING WITH AN ASSOCIATION’S
GOVERNING DOCUMENTS,
THERE ARE STATUTORY REQUIREMENTS AN
ASSOCIATION MUST SATISFY
WHEN TOWING A VEHICLE.
FAILING TO COMPLY WITH
THESE REQUIREMENTS CAN LEAD TO FINANCIAL
PENALTIES AND LIABILITY
FOR AN ASSOCIATION. THIS
ARTICLE REVIEWS THE BASIC REQUIREMENTS AND
DISCUSSES SOME BEST
PRACTICES TO FOLLOW.
THINGS TO KNOW BEFORE YOU TOW BY KYLE E. LAKIN, ESQ.
8 The Law Journal Spring 2021 | cacm.org
STATUTORY REQUIREMENTS
Vehicle Code § 22658 authorizes associations of Common Interest Developments to tow wrongfully parked vehicles in certain conditions provided the documentation, notification, reporting, and other requirements of § 22658 are followed. First, Confirm One of the Conditions to Tow is Satisfied. Per Vehicle Code § 22658(a), there are three conditions in which an association may tow a wrongfully parked vehicle: 1. Proper Signage Posted. There is a sign posted in plain view at each entrance to the property that meets the size and wording requirements of § 22658; or 2. Prior Written Notice Given. The vehicle has been issued a notice of parking violation and 96 hours have elapsed since the issuance of that notice; or 3. Inoperable Vehicle. The vehicle is on private property in lawful possession of the association (e.g., depending on the association’s governing documents, this might include common area owned or controlled by the association); the vehicle lacks an engine transmission, wheels, tires, doors, windshield, or any other major part or equipment necessary to operate safely on the highways; and the association has notified the local traffic enforcement agency (e.g., local police, sheriff, or whatever the case may be), and 24 hours have elapsed since that notification. CAUTION: An association that fails to satisfy one of the statutory conditions and tows a vehicle is liable for double the storage or towing charges. Second, Provide the Towing Operator Written Authorization. If the association is initiating the tow, Vehicle Code § 22658(l)(1) requires that it provide the tow operator written authorization to remove the vehicle that includes the following information:
1. Make, model, vehicle identification number, and license plate number. 2. Name, signature, job title, address, and telephone number of the person authorizing the removal of the vehicle. 3. Grounds for removal of the vehicle. 4. Date and time when the vehicle was first observed parked at the private property. 5. Date and time that authorization was given to tow the vehicle. The person authorizing the tow can be an employee or agent of the association, but the person must be present at the time of removal and verify the alleged parking violation. Third, Notify Local Traffic Law Enforcement. Within one (1) hour after authorizing the tow, the association must notify local traffic law enforcement by telephone or, if telephone notice is impractical, by the most expeditious means available. (Veh. Code § 22658(f).) In addition, per subdivision § 22658(b), the tow truck operator must give notice of the tow to the vehicle owner.
MAINTAIN DOCUMENTATION
To help protect the association against a vehicle owner challenging a tow, it is important to document the grounds for the tow. Documentation may include pictures of the vehicle in violation and any posted signage related to towing. Multiple pictures may be helpful to show the length of time the vehicle was wrongfully parked. Also maintain a copy of the written authorization to the tow company for removal of the vehicle and written notification to law enforcement of the tow. Finally document any efforts to notify the vehicle owner of the violation and tow. If the association has a security or patrol vendor that is involved in parking enforcement, make sure they are informed of the current parking regulations for the community and understand the documentation the association needs to document parking violations.
CONTRACTING WITH THE TOW OPERATOR An association may not delegate towing discretion to its tow vendor except (1) in the case of a vehicle unlawfully parked within 15 feet of a fire hydrant or
in a fire lane, or in a manner which interferes with an entrance to, or exit from, the private property, and (2) there is a written agreement granting such general authorization to the tow vendor under the circumstances described in (1). (Veh. Code § 22658 (l)(1)(E).) Consult with the association’s legal counsel before entering a contract with a tow company and before the first tow at the development to ensure that the proper authority for towing exists in the governing documents and the association is following the appropriate towing procedures. Legal counsel can review the contract for, among other things, terms that are overly one-sided in favor of the tow operator, minimum conduct/standards the tow operator must follow, and provisions that will protect the association (e.g., insurance and indemnification terms).
VEHICLE OWNER’S RIGHTS
The vehicle owner has certain rights under Vehicle Code § 22658. For example, if requested by the owner of the vehicle, the association must state the grounds for removing the vehicle. In addition, contrary to what you might have seen on tv, online or in the movies, if the vehicle owner or his/her agent requests release of the vehicle before the tow operator removes the vehicle from the property and is in transit, the tow operator must “immediately and unconditionally” release the vehicle. (Veh. Code § 22658(g)(1)(B).) However, the owner must move the vehicle to a “lawful location” (Veh. Code § 22658(g)(2)) and depending on the stage of the towing process when the release was requested, the owner may be required to pay a portion of the towing charge (Veh. Code § 22658(h)).
TOW POLICY
Before towing, consider implementing a tow policy to ensure that the association complies with the Vehicle Code, residents are on notice of the circumstances under which an association will tow a vehicle, and proper documentation is maintained for each tow.
Kyle E. Lakin, Esq. is a partner of Delphi Law Group, LLP and specializes in community association law. He services Southern California.
cacm.org | The Law Journal Spring 2021 9
SENATE BILL 908:
Licensing for Debt Collectors By Jeffrey A. French, Esq.
The real impact will be on those that are doing the collections work for the associations.
O
n September 25, 2020, Governor
1, 2022. In order to meet the licensing
Newsom signed Senate Bill
start date in 2022, the Commissioner will
908 into law, enacting the Debt
spend much of 2021 adopting regulations
Collection Licensing Act (“DCLA”). The
designed to implement the licensing
adoption of the DCLA places California with
program. In recognition of the fact that
the majority of states that already require
there may be a flood of applications in late
consumer debt collectors to be licensed.
2021, any person or entity that submits
Senate Bill 908 is a part of California’s
an application before this date will be
recent triad of consumer financial services
permitted to operate in 2022 pending the
legislation, including AB 1864 (creates the
approval or denial of the application.
Department of Financial Protection and Innovation and the California Financial
The DCLA will supplement existing law
Protection Law) and AB 376 (creates a
such as the Rosenthal Fair Debt Collection
new Student Loan Borrower Bill of Rights).
Practices Act (“Rosenthal Act”) that
All of these bills are intended to enhance
prohibits debt collectors from engaging
consumer protection and provide greater
in unfair or deceptive acts or practices in
regulation of the persons and entities
the collection of consumer debts. Rather
engaged in debt collection.
than amend the Rosenthal Act to include a licensing obligation, the legislature decided
The DCLA became effective on January 1,
instead to create a new standalone statute
2021, requiring the Commissioner of the
which will be codified in a new part of the
Department of Business Oversight (soon to
state’s Financial Code. The two acts are
be the Department of Financial Protection
designed to work in concert regulating
and Innovation) to take all action necessary
consumer debt collection practices,
in order to be prepared to implement the
and effort has been made to avoid joint
licensing requirement effective January
prosecutions under each act.
10 The Law Journal Spring 2021 | cacm.org
The DCLA does not impose much in the way of substantive requirements recognizing the fact that the Rosenthal Act already serves that purpose. However, DCLA licensees must still obtain a surety bond, file an annual report, sign the license application under penalty of perjury, submit to a criminal background check and pay an annual fee, set by the Commissioner each year. The DCLA also requires licensees that send out digital or written communications with consumers to have their license number displayed in 12-point type on all such communications. The DCLA further authorizes the Commissioner to exercise
Both law firms and management companies that engage in collection activities come under its scope and will have to be licensed debt collectors subject to both the DCLA and Rosenthal Act.
oversight, field consumer complaints and issue orders and claims for relief in connection with a violation of the Rosenthal Act or the DCLA. With regard to community associations in California, the DCLA should not materially impact their ability to collect assessments, but it may certainly increase costs associated with collection efforts as greater state regulation tends to drive costs upward for all concerned. However, the real impact will be on those that are doing the collections work for the associations. While there are a small number of potential exemptions to the application of the DCLA licensing requirement, both law firms and management companies do not appear to be exempted at this time. It is possible that the scope of the exemptions could increase as the DCLA is fully unpacked via the adoption of regulations. But, for now, it appears that both law firms and management companies that engage in collection activities come under its scope and will have to be licensed debt collectors subject to both the DCLA and Rosenthal Act. This will bring both law firms and management companies under greater scrutiny and require strict compliance with both the Rosenthal Act and DCLA to avoid
As of today, much remains to be seen as to how the DCLA will ultimately apply to community association debt collection and whether it will have a large or small impact on assessment collection. While the DCLA sets up a general framework for licensure, the detail will be in the regulations which have yet to be adopted. It also remains to be seen whether California will administer its own standalone licensing program or offer a debt collection license through the already existing Nationwide Multistate Licensing System. Regardless, SB 908 is somewhat of a game-changer and will require those engaged in the collection of assessments to pay close attention to its implementation via the regulations and then move quickly to comply with its licensing requirements. Any failure to comply will leave the law firm or management company unable to legally engage in collection activities in the state of California until such time as all licensing requirements have been met.
Jeffrey A. French, Esq. is an attorney specializing in community association law with Green Bryan & French, LLP. He’s worked in the industry for 25 years and services San Diego and Coachella Valley.
possible claims under each act or, even worse, license suspension or forfeiture.
cacm.org | The Law Journal Spring 2021 11
Unintended Consequences of the Stay at Home Orders INCREASED VEHICLES AND TRAFFIC AND ENFORCEMENT OF THE ASSOCIATION’S VEHICLE RESTRICTIONS BY JENNIFER M. JACOBSEN, ESQ. & RAIHANE A. DALVI, ESQ.
The COVID-19 stay-at-home restrictions and the
duty to enforce the governing documents in order
pandemic in general have together significantly
to protect the interests of the association’s
increased the number of Californians working and
members as a whole. On the other hand, boards
learning from home. Additionally, many
must also acknowledge the changing needs of
Californians remain unemployed during state and/
their communities and must act reasonably with
or county shelter-in-place restrictions.
enforcement. Many of these increased parking violations result from associations being unable to
Due to the unprecedented number of residents
provide adequate parking amenities in light of
working, learning, and staying at home,
shelter-in-place orders amid the COVID-19
community associations are finding many new
pandemic. Communities are not typically
challenges. One notable challenge is the increased
designed for all residents to be working and
strain on parking amenities. It is no surprise, then,
learning from home, and therefore many of these
that many associations are dealing with a
violations are a product of necessity during the
substantial increase of parking-related violations
pandemic. Additionally, the COVID-19 pandemic
such as improper parking on common area streets
has raised anxieties and placed many members in
and residents using parking spaces that are
a difficult financial situation, which can make
exclusively reserved for guests.
violations (and resulting fines) an even more stressful issue to deal with for associations as well
Boards of directors are now faced with a unique challenge. On one hand, boards have a fiduciary
12 The Law Journal Spring 2021 | cacm.org
as the owners.
With this in mind, the following question has
boards with a good reason to refrain from
variances is not specifically addressed in the
arisen for many associations: what is the best
taking immediate enforcement action for
governing documents, then it should work
way to provide greater flexibility and
specific parking violations. For example, in a
with legal counsel to craft a board resolution
leniency for parking violations during the
situation where the governing documents
addressing variances for COVID-19 relief and
COVID-19 pandemic? Although there is no
prohibit driveway parking, the board could
providing
easy answer, several different options are
decide to refrain from immediately
requirements.
available depending on each association’s
addressing a college student required to
respective abilities, needs, and concerns. Of
“distance-learn” and live at home who is
Of course, certain parking restrictions cannot
course, any plan of action should start with
parking an extra vehicle in the driveway. The
be waived because they relate to life-safety
consultation with the association’s legal
board is not “permitting” the violation, but
issues, such as prohibited parking in fire-
counsel to determine the best strategy for
rather delaying enforcement until it can
lanes, use of disabled spaces, and blocking
each particular community.
reasonably take enforcement action given
ingress and egress. These types of parking
the current shelter-in-place orders.
restrictions must continue to be enforced.
order to provide greater context and flexibility
As another option, boards may also grant
Regardless of what option a board decides is
during these challenging times. However,
requests for temporary variances on a case-
best for their association, it should take the
there are certain challenges when adopting a
by-case basis as a result of the COVID-19
opportunity to explain these changes to its
rule change. First, rules cannot contradict an
pandemic. For example, variances can
members and residents. Such proactive
association’s Declaration of Covenants,
address unique situations such as the
communication will result in greater
Conditions and Restrictions (“CC&Rs”).
displacement of vehicles from garages in
transparency, acknowledge the changing
(Ekstrom v. Marquesa at Monarch Beach
order to allow additional space for “distanced
needs of the community and the requirement
Homeowners Assn. (2008) 168 Cal. App. 4th
learning” by children. Granting such
for eventual compliance, and build trust
1111.) For example, if a board wants to allow
variances falls within a board’s discretionary
between the association and its members.
residents to park on the street, but the CC&Rs
authority with respect to taking enforcement
explicitly prohibit street parking, then such
action. If a board’s authority to grant
related
parameters
and
One option is revising existing parking rules in
rules cannot be adopted because they would directly conflict with the CC&Rs. Second, a rule-change can be costly and time intensive as it requires involvement of legal counsel and notice and comment by the members. Third, unless adopted as an emergency rule, assuming the rule change was adopted as a temporary measure in light of the pandemic, then the only way it can be undone is by adopting (yet another) rule change. A simpler option may be to adopt a policy on the enforcement of certain parking restrictions. Under what is commonly referred to as the “business judgment rule,” boards have discretion when it comes to their enforcement of governing documents. In this
Jennifer M. Jacobsen, Esq. and Raihane A. Dalvi, Esq. are attorneys with Baydaline & Jacobsen LLP and serve as general counsel to community associations. They service Sacramento and San Francisco. Jacobsen has been in the industry 28 years and Dalvi four years.
regard, the COVID-19 pandemic provides
cacm.org | The Law Journal Spring 2021 13
2021 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
14 The Law Journal Spring 2021 | 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 16
cacm.org | The Law Journal Spring 2021 15
2021 LEGAL DIRECTORY, Continued from page 15
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 lawforhoas.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
16 The Law Journal Spring 2021 | 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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