WINTER 2023
INDIVIDUAL VS. GENERAL DELIVERY WHY IT MATTERS PAGE 4
MASTERING THE BLUEPRINT
OF ARCHITECTURAL STANDARDS PAGE 8
TOOLS TO ADDRESS LACK OF CIVILITY IN HOAs
PAGE 10
CONTRACT NEGOTIATION AND ADMINISTRATION 101 PAGE 14
HOW TO BEST GOVERN
ADUs AND JDUs PAGE 16
Winter 2023
A PRACTICAL REVIEW OF COMMUNITY MANAGEMENT LAW
Winter 2023 Law Journal Editorial Committee Chief Editor Attorney Guest Editor
Fred Whitney, Esq. Whitney | Petchul Allison Andersen, Esq. Angius & Terry LLP
Winter 2023 Law Journal Committee Members Mark Guithues, Esq. Community Legal Advisors
Hamlet Vazquez, MCAM-HR Wilshire Terrace Co-Op
Leena Danpour, Esq. SwedelsonGottlieb
Lorena Sterling, CAFM Community Association Financial Services (CAFS)
Jill Morgan, CCAM Allure Total Management
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.
Interested in advertising in CACM’s Law Journal? Reach out to us at marketing@cacm.org
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2 The Law Journal Winter 2023 | cacm.org
Guest Editor’s Note As we move further away from the COVID-19 pandemic, there is one lesson that we have hopefully all learned: effective communication can be the key to success, even during the most difficult times. Community managers are required to understand a significant amount of material to become certified, but a manager’s inability to communicate can thwart even the best plans and projects. Even the simplest of tasks can be doomed if the manager cannot empathize, discuss, and sometimes negotiate with community members. The Winter Law Journal focuses on how poor communication can serve as an obstacle to success and identifies specific situations where good communication is a must. David F. Feingold’s article on Dealing With Difficult
People provides counsel on identifying
Effective communication “can be the key to success, even during the most difficult times.
personality types and providing strategies
”
for working with those personalities. Karyn A. Larko’s article outlines the legal requirements for the Management and Administration of Owner Communications. Jasmine F. Hale, Andrew Parslow, and Stephen M. Levine then write about the dirt in the details of Contract Negotiation and Administration 101 , How to Best Govern
Additional Dwelling Units in a Homeowners Association , and the Management and Administration of Architectural Standards. We thank all the authors for their contributions. The end of the year is always an exciting time for our profession. We can look back at the lessons we have learned and consider how to implement them in the future. Who ever thought at the outset of the pandemic that Zoom would increase owner participation? We can also look forward to new laws that might streamline certain aspects of community governance! 2024 is going to be a great year! I hope you all enjoy the holiday season, and I look forward to seeing you at the next CACM event.
Allison L. Andersen, Esq., has spent 21 years working with HOAs. She is an attorney with Angius & Terry LLP in Sacramento, specializing in community association law.
cacm.org | The Law Journal Winter 2023 3
CO N N EC T I N G T H E D OT S E X P E R T I N S I G H T S I N T O H O M E O W N E R C O M M U N I C AT I O N S By Karyn A. Larko, Esq.
The Davis-Stirling Common Interest Development Act (California Civil Code (“CC”) §§4000-6150) mandates that certain association communications be provided to members by individual delivery and permits other communications to be provided by general delivery. This article explores the distinctions.
INDIVIDUAL DELIVERY
shown on the association’s records for the
board election process if the board
In accordance with Civil Code §4040 and
member by first-class mail, registered or
wants the option of electing directors
§4041, individual delivery is the delivery
certified mail, express mail, or overnight
of a communication in keeping with the
delivery.
by acclamation. • Hearing and post-hearing notices (although these notices may also be
preferred delivery method(s) specified by the member in response to the association’s
If a member has never responded to a 4041
delivered personally).
annual request for member contact
Solicitation or submitted their contact
information.
information to the association, individual
It is important to know that the Civil Code
delivery is achieved by sending the
imposes additional delivery requirements
As of January 1, 2023, §4041 requires
communication to the member’s on-site
for some communications. For example,
associations to solicit from each member
property address.
a member can request that the annual budget report and policy statement and
that member’s contact information and preferred method(s) for receiving
Communications that must be provided
certain communications pertaining to
association communications via individual
by individual delivery include, but are not
delinquent assessments be sent to as many
delivery (“4041 Solicitation”). Each member
limited to:
as four different mail or email addresses
is entitled to request that communications be sent to the member at one or two specified mailing addresses, one or two specified email addresses, or at a specified mailing address and a specified email address. If a member has not responded to the
• The annual budget report and policy statement. • Notice of an assessment increase or
or a combination of the two. Additionally, it mandates that certain delinquency communications be sent via certified mail.
special assessment. • Notice of a lapse, cancelation, nonrenewal, or significant change in the
GENERAL DELIVERY
association’s insurance.
In accordance with §4045, general delivery
• Notice of a newly adopted fine unless
is achieved by:
association’s most recent 4041 Solicitation,
the new fine was included in the most
• Individual delivery.
individual delivery is achieved by sending
recent policy statement.
• Inclusion of the communication in a
the communication to the last address
4 The Law Journal Winter 2023 | cacm.org
• Certain notices are required during the
billing statement, newsletter, or other
INDIVIDUAL DELIVERY: sending the communication to the member’s address of record. document provided by general delivery.
GENERAL DELIVERY: posting the communication in prominent common area location(s).
in fines), notices of board meetings, notices
annual policy statement are sent. Further,
of nominating procedures provided election
§4041 mandates that associations update
prominent common area location(s)
by acclamation is not contemplated,
their records with the responses received.
accessible to all members, provided
notices of upcoming board elections and
the prior fiscal year’s annual policy
candidates, and notices of the outcome of
If a manager fails to promptly update an
statement identified the location(s)
member votes.
association’s records, it can lead not only
• Posting the communication in
where communications would be posted.
to violations of the Civil Code for failing It is important to know, however, that
to update member contact information
§5260 and §4045 grant members the right
and failing to effectively provide required
prominent location on the association’s
to request, in writing, individual delivery
communications but also liability for the
website accessible to all members,
of communications otherwise subject to
association. This failure can also create other
provided the prior fiscal year’s annual
general delivery. Associations are required
problems, such as issues with imposing and
policy statement identified this location
to comply with these requests.
collecting assessment increases and special
• Posting the communication in a
for the posting of communications.
assessments and the ability to impose fines,
• Broadcasting the information on the association’s television station (if applicable). Communications that may be provided by general delivery include notices of proposed and adopted rule changes (except changes
to name a few.
MEMBER CONTACT INFORMATION As mentioned above, §4041 requires associations to solicit member contact information from all members annually at least 30 days before the budget report and
Maintenance of member contact information should be kept in a program that can be easily downloaded to a spreadsheet and provided to third parties as necessary or required by law. Continues on page 6
cacm.org | The Law Journal Winter 2023 5
PRACTICE TIPS
CONNECTING THE DOTS Continued from page 5
• If an association’s governing documents impose different delivery requirements for communications than the Civil Code, consult with the association’s legal counsel on which controls.
MANAGEMENT TRANSITIONS
• Members must consent to receive association communications via email. The inclusion of a member’s email address in a member’s response to an association’s 4041 Solicitation achieves this consent.
A professional manager is just that – a professional. When transferring an association’s records to a new manager or management company, provide the association’s complete records in
• Individual delivery via email is not achieved if you receive notice that the message failed to reach the recipient. Consult with the association’s legal counsel on how to effectuate individual delivery should this occur.
the same manner you would want to receive them. This includes providing the current membership list and the current member contact information in both hard copy and electronic format
• While the Civil Code permits general delivery of notices of proposed and adopted rule changes, consider sending these notices via individual delivery to facilitate member knowledge of and compliance with these changes.
and providing organized files containing correspondence sent to the entire membership, as well as correspondence between the association and individual property owners. Providing these records
• Before sending communications pertaining to delinquent assessments, confirm with the association’s legal counsel all delivery requirements.
is as critical to a smooth management transition as providing complete and accurate financial records.
Karyn A. Larko, Esq., is a Community Association Counsel with Epsten, APC, out of San Diego. She has 15 years of experience advising boards of common interest developments on general legal matters.
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cacm.org | The Law Journal Winter 2023 7
MASTERING THE
BLUEPRINT
BY STEPHEN M. LEVINE, ESQ.
BEST PRACTICES IN THE MANAGEMENT AND ADMINISTRATION OF ARCHITECTURAL STANDARDS The purpose of an architectural committee is to make sure that property values are protected and homeowners comply with the association’s architectural standards to balance the interests of homeowners and the community. The architectural standards are a set of rules that dictate what homeowners can do in terms of design, improvements, and modifications to their property. Every community will have this set of rules, which owners can usually find in the CC&Rs or in separate architectural guidelines. As a community association manager, you need to familiarize yourself with each community’s distinct guidelines. Some committees have outside consultants such as architects, arborists, or engineers who provide guidance and recommendations to the committee members, but many do not. 8 The Law Journal Winter 2023 | cacm.org
WHAT DOES AN ARCHITECTURAL COMMITTEE DO? The committee will usually manage the application and approval process for modifications, improvements, and changes; inspect improvements for any violations of the guidelines; perform progress or completion inspections on work being performed to confirm that the homeowner is complying with the standards and the approved application; and propose changes to architectural rules. In condominiums, the committee is primarily focused on internal alterations and improvements that impact the common areas (removal of walls, recessed lighting, changing flooring, plumbing, electrical, etc.); window treatments visible from outside the unit; and balcony and patio issues. In planned developments, an architectural committee is primarily concerned with exterior aesthetics (paint colors, materials, landscaping, patio covers, etc.).
THE APPLICATION FORM To avoid issues prior to and once construction commences, make sure the association’s forms are clear and concise. You may want to create a standard application form for homeowners. This form should ask for the following information: • The type of addition or alteration • The purpose of the addition or alteration • The materials being used • Paint colors and finishes • Pictures, plans or blueprints of the project showing dimensions and elevations • Contractor details including licenses, permits, and insurance certifications • A timeline for completion • Anticipated work hours and schedule • Any additional details (e.g., portable potty rentals, dumpsters, etc.)
THE ARCHITECTURAL STANDARDS ARE A SET OF RULES THAT DICTATE WHAT HOMEOWNERS CAN DO IN TERMS OF DESIGN, IMPROVEMENTS, AND MODIFICATIONS TO THEIR PROPERTY.
An application may require a fee to compensate outside consultants if they are needed. You may want to have the homeowner acknowledge that they will comply with all local regulations and secure any necessary permits. The form should also remind homeowners that just because they received approval from the local city/ county department does not mean that the association will approve the project (and vice versa). Finally, you may want neighbors’ signatures on the application acknowledging or approving the upcoming project. Although this isn’t necessary, it is a factor the committee may consider.
WHAT TO DO WHEN AN APPLICATION IS SUBMITTED First, calendar when a response is due as some CC&Rs provide that an application is deemed approved within 30 days if it has not been rejected, or it can be deemed rejected if the committee fails to respond within 30 days (and then you have an irate homeowner calling you). Second, communication is key, so you should inform the committee that an application has been received and provide it with the decision due date. Finally, you need to make sure that the architectural committee, or if an association does not have such a committee, then the board, takes timely action. In some communities, the committee has the power to approve or deny a request, while in others, the committee only has the power to recommend a decision to the board.
CREATE A FAQ SHEE T Community managers and committee members often get the same questions concerning the process, procedure, style,
paint colors, etc. If you haven’t already done so, start compiling the questions and simple answers. Include this FAQ with the architectural review packet. Answering these common questions will save you and your members time and will help homeowners move forward with the architectural review process.
REQUIREMENTS FOR THE DECISION-MAKING PROCESS Associations must follow §4765 of the Civil Code with respect to architectural review and decision-making. The association must provide the following procedure for making its decision: • It must be fair, reasonable, and expeditious. • It shall be included in the governing documents (CC&Rs or operating rules). • It shall provide for prompt deadlines, and • It shall state the maximum time for a response to the architectural application or a request for reconsideration by the board. (Civil Code §4765(a)(1)). It is important to remember that when preparing the annual disclosure packet for homeowners, the community manager must include a notice that describes the types of improvements/modifications that require association approval and include a copy of the association’s architectural application and approval process. (Civil Code §4765(c)) Any decision regarding a proposed change must be made in good faith and not be unreasonable, arbitrary, or capricious (Civil Code §4765(a)(2)); must not conflict with any “governing provision of law” (e.g., FEHA, building codes, laws governing land use or public safety) (Civil Code §4765(a)(3)); and must be in writing (Civil Code §4765(a)(4)).
THE DECISION After deciding, the association must mail the written decision to the homeowner. If an application is disapproved, the decision must include both an explanation of why the application was disapproved and a description of the procedure through which the member may request board reconsideration of the decision (Civil Code §4765(a)(4)). Where an application is disapproved, the member is generally entitled to reconsideration at an open meeting of the board of directors (Civil Code §4765(a)(5)). However, if the initial disapproval of the application was made by the board “or a body that has the same membership as the board” at a duly held board meeting, no reconsideration is required (Civil Code §4765(a)(5)). Managed communities are often appealing because of the uniform aesthetic of the neighborhood. A well-run architectural committee will preserve the aesthetics and maintain the appearance and value of the community.
Stephen M. Levine, Esq., has 24 years of industry experience and is an attorney at The Judge Law Firm based out of Irvine, practicing community association and real estate law.
cacm.org | The Law Journal Winter 2023 9
DEALING WITH DIFFICULT PEOPLE
IT’S WHAT GREAT COMMUNITY MANAGERS DO
Best
By David F. Feingold, Esq.
Over the last 30 years, I have had the privilege of watching countless community managers in action and have concluded that the one attribute they share is their ability to deal with difficult people. This article will summarize the expansive free speech rights held by community members, provide resources to help identify the types of difficult personalities and, in turn, how to deal with each type. It will also provide tools that can be used to address what seems to be a growing lack of civility in how community members communicate.
UNDERSTANDING THE RIGHT TO FREE SPEECH It is important for all managers to understand that community members, including directors, have a right to speak their minds. While managers also have free speech rights, the great ones understand that they can best serve their communities (and stay out of trouble) by being a conduit and not a lightning rod. Community associations are deemed to be quasi-governmental entities, and the free speech rights of interested parties must be respected in the same way elected public officials must suffer the slings and arrows directed at them from disgruntled citizens. Over the years, the Davis Stirling Act and California courts have become increasingly tolerant of speech that is rude, belligerent, obnoxious, and even false. The rise of email as a primary form of speech has added to
10 The Law Journal Winter 2023 | cacm.org
the problem, as it is far too easy to hide behind a keyboard and say things that would never be said face to face. There are situations where speech will cross the line, and action is appropriate and necessary. Speech is not protected if it involves a threat of harm or a course of conduct that seriously alarms, annoys, or harasses, which serves no legitimate purpose and causes substantial emotional distress. Speech can also become discriminatory if it is focused on the target’s membership in a protected class, for example, their race, religion, familial status, or disability. If you suspect that the line has been crossed, consult the association’s counsel before acting. Far too often, action is taken in response to an exercise of free speech rights, and that action is then used against the association as further evidence of its disrespect for the rights of its members.
APES
loud and rude
BEES
OWLS
sarcastic and tend to sting
HYENAS
annoying and noisy
know it all’s
Crowe identifies difficult personalities in two major categories, aggressive and passive, but uses helpful animal analogies for each type.
LIZARDS
complainers
IDENTIFY THE TYPES OF DIFFICULT PEOPLE AND SELECT THE BEST APPROACH There are many resources that are helpful in identifying conflict communication styles (yours and others) and the optimal approach for each style. The Thomas-Kilmann Conflict Mode Instrument (TKI) is a well-known tool that describes the main conflicthandling styles in two categories: assertiveness and cooperativeness. If the TKI is too esoteric, I highly recommend a book titled – quite aptly – “Since Strangling Isn’t an Option” by Sandra Crowe. Crowe also identifies difficult personalities in two major categories, aggressive and passive, but uses helpful animal analogies for each type. For example, there are Apes (loud and rude), Hyenas (annoying and noisy), Bees (sarcastic and tend to sting), Owls (know it all’s), and Lizards (complainers). For each type, there is a tried-and-true response. For example, when dealing with a hostile Ape, acting like a hostile Ape yourself is never the right approach. Be assertive but never aggressive. Take the time to listen and let them vent, then focus on solutions. Owls are making up for their own insecurity, so instead of immediately contradicting their perspective, actively listen, acknowledge it, and then inquire whether they have considered additional information or resources that may be more relevant. Continues on page 12
cacm.org | The Law Journal Winter 2023 11
DEALING WITH DIFFICULT PEOPLE
Continued from page 11
adopting such a code can shed light on uncivil behavior without calling out the individual directly and tends to dampen the enthusiasm for rude and aggressive speech. Use the internal dispute resolution (IDR) process freely – give the member a place to
TOOLS TO CONSIDER For any community dealing with a lack of civility, there are tools that great managers use to address the problem. A good approach is to address the lack of civility as a board or community issue. For example, if there are directors who are targeting
vent and be heard. Consider appointing a community dispute resolution committee made up of independent community members who are adept at resolving disputes. Such a committee can serve as another community resource and a place for members to be heard.
other directors (or the manager) with uncivil behavior, consider proposing that the board adopt or revise a director Code of Conduct. The exercise of discussing and adopting such a code allows the problem to be addressed without calling out that director personally. If there are members that are the source of hostile and critical speech targeted at neighbors, directors, or the manager, consider proposing a non-binding but aspirational Civility Code for the community. Again, the exercise of discussing and
12 The Law Journal Winter 2023 | cacm.org
Good managers understand that dealing with difficult people is part of the work. Great community managers understand that dealing with difficult people is not only part of the work but also a rewarding part of the work. They take the modifier “community” in community manager seriously and understand that they are managing a community, a group of complex individuals, and not merely a collection of structures and facilities. If you’re a manager, choose to be a great one!
David F. Feingold, Esq., is a partner at the law firm of Ragghianti Freitas LLP and has represented common interest developments in the Bay area since 1986.
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Contract Negotiation and Administration By Jasmine F. Hale, Esq.
Boards often mistakenly think that the dollar value of the agreement represents the association’s risk. The risk of the agreement is the amount of damage the contractor’s work can cause that the association may have to pay for.
14 The Law Journal Winter 2023 | cacm.org
101
A
warding contracts is part of a board’s daily diet in terms of its duties. They can range from the standard approval of yet another plumbing repair bid for $700 in an owner’s unit to complex multi-phase post-construction defect agreements spanning years, millions of dollars, and everything in between. This article covers best practices, important provisions, and tips for managers to navigate the sometimes unexpectedly choppy waters associated with contracts.
Contracting Best Practices I conduct a fair amount of board training orientations (upwards of 50 a year.) In these meetings, when the discussion turns to contract best practices, I explain that boards should always have the agreement – regardless of monetary size – reviewed by legal counsel. Following gasps, I then explain that I’m not saying it to drum up business! A tenet of contract law is that the parties are bound by the four corners of what is (and is not) stated in the agreement. Of course, both parties at the start of a contractual relationship assume it will all turn out well, and most of the time, it does… until it doesn’t. I have seen more negative issues from the simple $700 plumbing bid that causes $150,000 of flooding damage to several units than I have from a million-dollar asphalt contract. Boards often mistakenly think that the dollar value of the agreement represents the association’s risk. The risk of the agreement is the amount of damage the contractor’s work can cause that the association may have to pay for.
I also recommend managers run the agreement’s insurance provisions by the association’s insurance broker and insist on receipt of insurance certificates and additional insured endorsements prior to commencing the relationship. An agreement that requires the vendor to have general liability insurance but doesn’t ensure the policy covers claims arising from a common interest development or name the association as an additional insured is of little benefit if a claim arises but isn’t covered. Contractors that have the right amounts and types of insurance are more likely to cover a claim and its resultant damages. Another best practice pertains to the vendor that performs frequent services (typically small repairs, plumbing, etc.) based on a two-page “bid” that includes a scope of work and not much else. In these cases, the association should insist on a master “shell” agreement that includes important provisions (more on those below) and integrates the ongoing proposals into the master agreement. If a board signs a bid that either does not include indemnification, insurance, and important terms or, worse, has an absurdly low liability limit, they may find that they are footing the bill for losses that should have been borne by the vendor. Two of the most essential terms of an agreement go hand in hand: the vendor’s insurance and indemnification obligations. In addition to the above recommendations concerning insurance, I also recommend most vendor agreements include the contractor’s unilateral duty to indemnify, defend, and hold the association harmless. Indemnification is a legal concept where Party A protects Party B from costs and claims that arise due to Party A’s actions, which is partly why having the right insurance requirements is so critical. Except in limited circumstances, such as management or agent agreements, associations should not indemnify the vendor. Lastly are “boilerplate” provisions that, while not sexy, surprise me when I see them missing from agreements. Boilerplate provisions, typically found at the end of agreements, include topics such as waivers (whether a party’s prior failure to insist on compliance excuses a future failure – unless you have the provision, there’s an argument you have waived enforcement), assignment (whether a party can assign their rights to another party regardless of whether the other party wants it or not), integration (whether all those glowing promises made during the sales presentation are included), and so on. Boilerplate provisions are often not needed… until they are. If the agreement does not have them, it can impact rights, defenses, and options when things go sideways.
Best Practices Checklist So, what is a manager to do? The reality is that many boards, shortsighted though it may be, will not authorize the expense of having legal counsel review their agreements. The following are not intended to replace the value legal counsel’s review can bring to an agreement but can at least assist a community manager to help ensure the contractual relationship is a bit more level between the parties:
sure the association’s full legal name – not management’s – is Make listed as the party to the agreement. the association’s insurance broker review the agreement for Have amounts and types. provisions should require the policy to cover claims Insurance arising from a common interest development and name the
association as an additional insured. Verify this by requiring an insurance certificate and additional insured endorsement from the vendor’s carrier.
provisions that cap the contractor’s liability exposure to Remove the value of the contract or other artificially low amounts. If that is not possible, tie the liability limitation to the amount of insurance coverage carried by the contractor.
sure boards review apples-to-apples bids, which requires Make clear and consistent scopes of work. of terms (i.e., duration) that automatically renew. After an Beware initial term, the agreement should allow either party the right to terminate the agreement for any reason.
the association’s bylaws to confirm the board has the Review authority to approve the agreement. Bylaws often place limitations on a board’s ability to enter into agreements.
Jasmine Hale, Esq., is a community association law attorney with Berding & Weil, LLP’s Walnut Creek office. She has 16 years of experience.
cacm.org | The Law Journal Winter 2023 15
How to Best Govern
Additional Dwelling Units in a Homeowners Association By Andrew Parslow, Esq.
D
ue to the rising cost of housing and shortage of affordable homes, there has been a
push for the California Legislature to encourage higher-density uses of properties in areas traditionally zoned for single-family use. This trend directly impacted homeowners associations through the passage of Civil Code §4751, which prohibits associations from unreasonably restricting the construction and implementation of Accessory Dwelling Units (“ADU”) and Junior Accessory Dwelling Units (“JDU” or “JADU”).
What are ADUs and JDUs?
This statute and the rising costs of living
An Accessory Dwelling Unit is defined as an
in California led to an increase in the
attached or detached residential unit located on
presence of ADUs and JDUs in deed-
the same legal lot as an existing single-family
restricted communities in recent years,
residence that provides complete independent
necessitating that property managers
living facilities for one or more persons. An
and community boards of directors
example of this would be your standard
be aware of these innovations and
detached mother-in-law suite.
understand the impact they can have on an association. This article will discuss how ADUs and JDUs can interfere with restrictions in governing documents, what regulations an association can enforce on them, and what standards a structure has to meet to be considered a proper ADU or JDU.
16 The Law Journal Winter 2023 | cacm.org
A
A Junior Accessory Dwelling Unit is a residential unit contained entirely within an existing single-family residence that is no more than 500 square feet in size. The most common example of a JDU is a garage that has been
converted so that it can be rented out to prospective tenants. Unlike an ADU, when renting out a JDU, the primary unit must be occupied by its owner.
ADUs and JDUs Interfering with CC&RS California Civil Code §4751(a) prohibits the enforcement of any clause in an association’s governing documents that “effectively prohibits or unreasonably restricts” a homeowner from constructing or renting an ADU or JDU. Not only does this statute prevent an association from expressly prohibiting ADUs and JDUs, but it can also lead to fairly common clauses in governing documents being deemed unenforceable when applied to ADUs or JDUs. One example of an otherwise valid restriction being impacted by ADUs and JDUs is the common requirement that a unit’s garage be used for vehicle storage purposes, prohibiting a unit owner from parking their vehicles outside their unit. If a member of an association wants to rent out their garage as a JDU, the association is required by law to allow them to park their vehicles on their
tile roofing, an owner’s application for a detached ADU can and should be denied if the proposed detached unit has slate roof tiles. Most policies an association would want to enforce that do not specifically target ADUs or JDUs would fall under this category. What constitutes a “reasonable restriction” can be a point of contention when an association’s architectural committee rejects a proposed ADU or JDU. To remedy this, an association may want to consider a distinct section in their architectural guidelines outlining the standards that must be met for a structure intended for use as an ADU or JDU.
Ensuring the Association Contains Proper ADUs and JDUs The protections granted to ADUs and JDUs under §4751(a) only apply to valid ADUs and JDUs. When a unit owner is seeking to circumvent restrictions in the governing
driveway rather than the garage.
documents or seeking approval from the
Impacted restrictions will still be valid as to
an ADU/JDU, boards of directors and
other units in the association; however, an association should be cognizant of when such restrictions apply to ADUs and JDUs to avoid attempting to improperly enforce the governing documents and to address complaints from neighbors on why the rules
architectural review committee to construct managers should question if the additional unit constitutes a valid ADU or JDU. Government Code §65852.2 lays out the requirements for ADUs and lists additional standards that can be imposed on a
do not appear to apply to their neighbors.
jurisdiction basis by local agencies. These
Permissible Restrictions for ADUs and JDUs
to exceed 1,200 feet, that an attached ADU
While the Civil Code limits what restrictions an association can impose on ADUs or JDUs, §4751(b) does allow for “reasonable restrictions.” Reasonable restrictions are defined as those that do not unreasonably increase their costs or effectively prohibit the construction of ADUs and JDUs. As long as the restriction does not make the construction of ADUs and JDUs unreasonably costly, they must comply with the same restriction as all other structures in the association. This includes approval by the architectural committee and compliance with the standards imposed in the association’s architectural guidelines. For example, if an association’s architectural guidelines require that all roofs in the association have Spanish
If a member of an association wants to rent out their garage as a JDU, the association is required by law to allow them to park their vehicles on their driveway rather than the garage.
requirements include a total floor area not does not exceed 50% of the floor space of the original unit, and approval by a health officer if a private sewage disposal system is in use. Government Code §65852.22 is stricter with the requirements for a JDU, which include a limitation of one per single-family residence, a requirement that they be located within the walls of a single-family residence and that they contain their own cooking facilities. In summary, it is vital for managers, boards of directors, and architectural committees to understand the laws and regulations and to establish clear written guidelines pertaining to ADUs and JDUs in homeowners associations, as they are becoming increasingly common in today’s real estate market.
Andrew Parslow, Esq., is an attorney at Feldsott, Lee & Nichter in Laguna Hills. With over 50 years in business, the firm is one of the pioneers in association law in Southern California.
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2023-2024 LEGAL DIRECTORY ASSESSMENT COLLECTION SERVICES ALLIED TRUSTEE SERVICES Assessment Collection & Judgment Recovery Services Stefan Murphy Serving All of California For Over 30 Years 990 Reserve Dr., Ste. 208 Roseville, CA 95678 (800) 220-5454 smurphy@alliedtrustee.com www.alliedtrustee.com ALTERRA ASSESSMENT RECOVERY Assessment Collection Services Steven J. Tinnelly Esq., President Advanced, Efficient, Effective HOA Assessment Recovery 27101 Puerta Real, Ste. 250 Mission Viejo, CA 92691 (888) 818-5949 ramona@tinnellylaw.com www.alterracollections.com COMMUNITY LEGAL ADVISORS, INC. General Counsel & Assessment Collections Mark Guithues, Esq., Laurie Masotto, Esq., Jeffrey Speights, Esq. Inland Empire, Orange County, San Diego 509 N. Coast Hwy., Oceanside, CA 92054 (760) 529-5211 • Fax (760) 453-2194 mark@attorneyforhoa.com www.attorneyforhoa.com
18 The Law Journal Winter 2023 | cacm.org
FELDSOTT, LEE & NICHTER, ATTORNEYS AT LAW General Counsel, Community Association Law Stanley Feldsott, Martin Lee, and Austin Nichter Laguna Hills, California 23161 Mill Creek Dr., Ste. 300 Laguna Hills, CA 92653 (949) 729-8002 • Fax (949) 729-8012 feldsott@gmail.com www.cahoalaw.com UNITED TRUSTEE SERVICES Trusted Partners In Assessment Collections Lisa E. Chapman HOA Assessment Collection Services 696 San Ramon Valley Blvd., Ste. 353 Danville, CA 94526 (925) 855-8554 • Fax (925) 855-8559 lisa@unitedtrusteeservices.com www.unitedtrusteeservices.com
ATTORNEYS BEAUMONT TASHJIAN General Counsel & Assessment Collection Services Jeffrey A. Beaumont and Lisa A. Tashjian Serving California With General Counsel & Collection Services 5008 Chesebro Rd., Ste. 200 Agoura Hills, CA 91301 (866) 788-9998 • Fax (818) 884-1087 info@HOAattorneys.com www.hoaattorneys.com BERDING | WEIL Construction Defect Litigation Steven Weil, Tyler Berding, Chad Thomas, Daniel Rottinghaus, Andrew Baugh, Paul Windust Walnut Creek, San Diego, Orange County, Sacramento 2175 North California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com www.berding-weil.com
COMMUNITY LEGAL ADVISORS, INC. General Counsel & Assessment Collections Mark Guithues, Esq., Laurie Masotto, Esq., Jeffrey Speights, Esq. Inland Empire | Orange County | San Diego 509 N. Coast Hwy. Oceanside, CA 92054 (760) 529-5211 • Fax (760) 453-2194 mark@attorneyforhoa.com www.attorneyforhoa.com EPSTEN, APC Association Counsel, Civil Litigation, Litigation, Commercial CID Counsel, Senior Housing & Assessment Recovery Collection Jon Epsten, Esq. & Susan Hawks McClintic, Esq. San Diego | Inland Empire | Coachella Valley 3111 Camino del Rio North, Ste. 560 San Diego, CA 92108 (858) 527-0111 • Fax (858) 527-1531 info@epsten.com www.epsten.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 www.fiorelaw.com FLANAGAN LAW, APC Community Association Law and Collections Tim Flanagan, Esq. San Diego, Orange County, Temecula, Coachella Valley 6050 Santo Road, Suite 220 San Diego, CA 92124 (619) 489-3100 tim@flanaganhoalaw.com www.flanaganhoalaw.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 www.gghoalaw.com
HICKEY & ASSOCIATES, P.C. Community Association Law David E. Hickey, Esq. 27261 Las Ramblas, Ste. 120 Mission Viejo, CA 92691 (949) 614-1550 • Fax (949) 748-3990 dhickey@hickeyassociates.net www.HickeyAssociates.net HUGHES GILL COCHRANE TINETTI, PC Community Association & Construction Defect Law John P. Gill, Esq. l Amy K. Tinetti, Esq. 2820 Shadelands Dr., Ste. 160 Walnut Creek, CA 94598 (925) 926-1200 • Fax (925) 926-1202 atinetti@hughes-gill.com www.hughes-gill.com THE JUDGE LAW FIRM HOA Law James Judge, Esq. Providing General Counsel & Collection Services Throughout CA for Over 20 Years 18650 MacArthur Blvd., Ste. 450 Irvine, CA 92612 (949) 833-8633 • Fax (949) 833-0154 info@thejudgefirm.com www.thejudgefirm.com KRIGER LAW FIRM Community Association Law and Assessment Recovery Bradley Schuber Serving Community Associations for Over 30 Years 8220 University Ave., Ste. 100 La Mesa, CA 91942 (619) 589-8800 • Fax (619) 589-2680 bschuber@krigerlawfirm.com www.krigerlawfirm.com LOEWENTHAL, HILLSHAFER & CARTER, LLP Construction Defect Litigation David Loewenthal I Robert Hillshafer Los Angeles, Ventura & Surrounding Counties 5700 Canoga Ave., Ste. 160 Woodland Hills, CA 91367 (866) 474-5529 • Fax (818) 905-6372 info@lhclawyers.net lhclawyers.net
Continues on page 20
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2023-24 LEGAL DIRECTORY Continued from page 19
THE NAUMANN LAW FIRM, PC Construction Defect Litigation Construction Defect Analysis William H. Naumann SERVING CALIFORNIA WITH MORE THAN 40 YEARS EXPERIENCE 10200 Willow Creek Rd., Ste. 150 San Diego, CA 92131 (844) 492-7474 • Fax (858) 564-9300 elaine@naumannlegal.com www.naumannlegal.com PRATT & ASSOCIATES, APC Community Association Law Sharon Glenn Pratt Los Gatos, CA 634 North Santa Cruz Ave., Ste. 204 Los Gatos, CA 95030 (408) 369-0800 • Fax (408) 369-0752 spratt@prattattorneys.com www.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 www.rflawllp.com RICHARDSON OBER, LLP Community Association Law, General Counsel, Assessment Recovery Kelly G. Richardson, Matt D. Ober Throughout California 234 E. Colorado Blvd., Ste. 800 Pasadena, CA 91101 (877) 446-2529 • Fax (415) 453-8269 info@roattorneys.com www.roattorneys.com
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SWEDELSONGOTTLIEB
WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Community Association Law, Construction Community Association Law Defect, Assessment Collection Michael W. Rabkin, Esq. David C. Swedelson, Esq. 11400 W. Olympic Blvd., 9th Floor Sandra L. Gottlieb, Esq. Los Angeles, CA 90064 Los Angeles | Orange County | (310) 744-4100 • Fax (310) 479-1422 Palm Desert | San Francisco l Ventura mrabkin@wrslawyers.com 11900 W. Olympic Blvd., Ste. 700 www.wrslawyers.com Los Angeles, CA 90064 (800) 372-2207 • Fax (310) 207-2115 slg@sghoalaw.com CONSTRUCTION DEFECTS www.lawforhoas.com
TINNELLY LAW GROUP Community Association Law Steven J. Tinnelly, Managing Partner & Richard A. Tinnelly, Senior Partner Orange County | Los Angeles | San Diego | Coachella Valley | Northern CA 27101 Puerta Real, Ste. 250 Mission Viejo, CA 92691 (949) 588-0866 ramona@tinnellylaw.com www.tinnellylaw.com
BERDING | WEIL Construction Defect Litigation Steven Weil, Tyler Berding, Chad Thomas, Daniel Rottinghaus, Andrew Baugh, Paul Windust Walnut Creek, San Diego, Orange County, Sacramento 2175 North California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com www.berdingweil.com
WHITE LAW GROUP, INC. COMMUNITY ASSOCIATION LAW, CONSTRUCTION DEFECT LAW Steven M. White, 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@whitelginc.com www.wm-llp.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 www.cnilawfirm.com
WHITNEY PETCHUL APC Community Association Attorneys Fred T. Whitney, Esq. / Dirk E. Petchul, Esq. From Inception To Build-Out And Beyond 27 Orchard Rd. Lake Forest, CA 92630 (949) 766-4700 • Fax (949) 766-4712 dpetchul@whitneypetchul.com www.whitneypetchul.com
FENTON GRANT KANEDA & LITT, LLP Construction Defect Litigation & CID Education Charles R. Fenton, Esq. & Joseph Kaneda, Esq. Servicing California & Nevada Communities for Over 25 Years 2030 Main Street, Ste. 550 Irvine, CA 92614 (877) 520-3455 • Fax (949) 435-3801 kkrupp@fentongrant.com www.fentongrant.com
THE MILLER LAW FIRM Construction Defect Analysis & Litigation Thomas E. Miller, Esq. & Rachel M. Miller, Esq. The Authority in California Construction Defect Claims for 40 Years 19 Corporate Plaza Dr. Newport Beach, CA 92660 (800) 403-3332 • Fax (929) 442-0646 rachel@constructiondefects.com www.constructiondefects.com RILEY PASEK CANTY LLP Construction Defect Resolution & Construction Defect Analysis Attorneys Rick Riley, Melissa Pasek, Kevin Canty Representing Community Associations Throughout the State of California 780 San Ramon Valley Blvd. Danville, CA 94526 (844) 775-5000 JWebster@RileyPasek.com www.rileypasek.com
ELECTION ADMINISTRATION ACCURATE OUTCOME, LLC Election Administration Denise La Fond Because Accuracy Matters 18336 Soledad Canyon Rd., Ste. 3125 Canyon Country, CA 91386 (661) 310-8828 info@accurateoutcome.net www.accurateoutcome.net
LIBERTY HOA ELECTION SERVICES, LLC Election Administration Deanna M. Libert We Make Association Voting Management Easy 1900 Camden Ave. San Jose, CA 95124 (408) 482-9659 deanna@hoaelection.com www.hoaelection.com
RESERVE STUDY FIRMS 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 www.helsing.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 www.asn4hoa.com
THE INSPECTORS OF ELECTION Providing Superior Election Support for California HOA’s Since 2006 Kurtis Peterson Completely Independent Full-Service Election Provider 2794 Loker Ave. W., Ste. 104 Carlsbad, CA 92010 (888) 211-5332 • Fax (888) 211-5332 kurtis@theinspectorsofelection.com www.theinspectorsofelection.com
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