The Law Journal, Summer 2018 by CACM-California Association of Community Managers

IN THIS ISSUE Disability Accommodations & Third Party Liability Under the Fair Housing Act Nuisance Abatement From aggressive dogs to growing trees Understanding Indemnification What it is and why it's important

Understanding Professional Service and Design Contracts Water Use: Update on the Status of Drought Related Laws

SUMMER 2018

Helping Your Boards Handle Director Conflicts of Interest BY KARYN LARKO, ESQ. – EPSTEN GRINNELL & HOWELL, APC

conflict of interest (“Conflict”) exists between a director and the director’s association any time the personal, professional or financial interests of the director (who is referred to as the “Interested Director”) differ from those of the association. Stated another way, a Conflict exists when a director’s loyalty to the association is compromised by the director’s own interests. California Civil Code § 5350 identifies

some of the most common Conflicts faced by directors, which arise when: • A director requests to make architectural alterations to his/her property • A director requests the exclusive use of a portion of the common area • A director is in violation of the association’s governing documents and the board is faced with deciding what, if any, disciplinary action to take

• A board is faced with the decision on whether to assess a director for damage caused to the common area • A director requests a payment plan for delinquent assessments • A board must vote on whether to foreclose on a director’s property If not handled properly, a Conflict can lead to liability for the association based Continued on page 2

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A Practical Review of Community Management Law Published by

California Association of Community Managers, Inc. 23461 South Pointe Dr., Ste. 200 | Laguna Hills, CA 92653 949.916.2226 | www.cacm.org

2018 CACM LAW SEMINAR ADVISORY COMMITTEE CHIEF EDITOR Fred Whitney, Esq. Neuland, Whitney & Michael, APC

GUEST EDITOR Zer Iyer, Esq. Angius & Terry LLP The CACM Law Journal is distributed four times annually to members, affiliates and 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. If you have any questions, please discuss them with your association’s legal counsel.

New Committees, New Opportunities At CACM, we want to bring more opportunities to a wider variety of attorney authors and manager members. A goal of the reimagining initiative is to tap into the wealth of talent and experience available throughout our membership. Following considerable discussion with the Legal Advisory Steering Committee (LASC) members and CACM staff, we decided to create more member opportunities by dividing what was formerly known as the Legal Advisory Steering Committee into two separate committees: The Law Journal Editorial Committee will have both manager and attorney members. This make-up will assist us in identifying the needs of manager members as journal topics are chosen. The content of each issue will address industry trends, providing managers with information, strategies and tools that they can implement as needed. The Law Seminar Advisory Committee will include managers and attorneys who will lead the development of the annual Law Seminar & Expo by contributing ideas, driving discussions and coordinating sessions at the industry’s premier event. If you're interested in joining a CACM committee, please review the opportunities at www.cacm.org/resources.

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upon such claims as failure to enforce the governing documents, violation of the governing documents, and discrimination. It can also lead to personal liability for the Interested Director and even the other board members under a claim of breach of fiduciary duty.

Handling Short Term Conflicts Civil Code § 5350 prohibits an Interested Director from voting on those matters identified by the statute. However, even when an Interested Director is not prohibited from voting, the Interested Director should be encouraged to abstain from voting on the Conflict matter in order to protect against a breach of fiduciary duty claim. Further, the Interested Director should be encouraged to leave the board meeting during the vote, because if he/she does not, the director’s abstention effectively acts as a vote against whatever matter is being voted on. For example, if a vote is conducted on whether to deny an Interested Director’s proposed payment plan and there are four directors present, including the Interested Director, and two directors vote in favor of rejecting the plan, one director votes against rejecting the plan and the Interested Director abstains from voting, the motion fails. However, if the Interested Director steps out of the meeting during the vote, the motion passes two-to-one.

While leaving the meeting during the vote on the Conflict matter may be contrary to the interests of the Interested Director, this action is important to protect the association’s interests. If your board is required to vote on a Conflict matter that could lead to litigation between the Interested Director and association, or that is or could foreseeably become contentious within the membership, the directors who vote should identify the reasons for their decision and these reasons should be recorded in the meeting minutes. Taking this action will help the board defend its decision should the board be accused of breaching its fiduciary duty or otherwise acting improperly in coming to its decision. If the Interested Director refuses to abstain from voting on the Conflict matter, encourage your board to consult with the association’s attorney for guidance. When in doubt as to whether a Conflict exists, the board should consult with the association’s legal counsel or assume the issue as a Conflict.

Handling Long Term Conflicts Disputes occasionally arise between a director (“Interested Director”) and a majority of the directors regarding an association matter. These disputes usually result from the board’s decision on

a Conflict matter pertaining to the Interested Director, such as a decision to deny the Interested Director’s architectural alteration request. However, they can also occur when an Interested Director strongly disagrees with a broader decision made by the board, such as a decision to incur a large capital expense. When faced with a Conflict that is not limited to one vote, especially a matter that could lead to litigation, encourage your board to promptly establish an executive committee to handle the Conflict only. This committee must be comprised of at least two current directors, but it cannot include the Interested Director. Only current directors may be appointed to the committee. All discussions pertaining to the Conflict, including all attorneyclient privileged communications, should be discussed with, and considered exclusively by, the committee. Noncommittee members, including the Interested Director, should not be included in committee meetings, copied on c o m m i t t e e communications, or provided committee meeting minutes. Executive committee meetings should be treated as executive session meetings. This means that a notice and agenda must be provided to the membership no

less than two days in advance of the meeting. Utilizing a committee to handle the Conflict will help avoid the appearance that the directors, including the Interested Director, are somehow acting improperly and reduce the likelihood of directors having to defend against a claim of breach of fiduciary duty. Additionally, it will protect the association’s attorney-client privilege with regard to the Conflict because the opposing party (i.e., Interested Director) will not be privy to the legal advice given by the association’s attorney. Additionally, if a Conflict involves any allegations of board wrongdoing, immediately file a claim with the association’s D&O carrier. If the carrier accepts the claim, the carrier may appoint insurance defense counsel, thereby saving the association in legal fees.

ABOUT THE AUTHOR Karyn Larko, Esq., is a lawyer at Epsten Grinnell & Howell, APC. She has 10 years of experience in community association law.

Disability Accommodations & Third Party Liability Under the Fair Housing Act What You Should Have Known Can Hurt You BY MARK T. GUITHUES, ESQ. & MARK ALLEN WILSON, ESQ. COMMUNITY LEGAL ADVISORS, INC.

ecent changes to federal law have expanded community association liability for disability discrimination to include failure to stop third party harassment. An association must seize the opportunity stop a discriminatory housing practice if it knows or should know about the discriminatory practice and has the power to correct it. In Revock v. Cowpet Bay West Condominium Association, et al. (3rd Cir. 2017) 853 F.3d 96 (“Cowpet Bay”), the court provided a clinic on the important steps associations must now take to minimize such claims of discrimination. Professional managers already know that the Fair Housing Act prohibits housing providers from discriminating on the basis of race, color, national origin, religion, sex, disability or familial status. Community associations are considered “housing providers” and therefore subject to the Act. Under new rules adopted by the Department of Housing and Urban Development (“HUD”), community associations are now “directly liable for failing to take prompt action to correct and end a discriminatory housing practice by a third-party…” The Office of Housing and Urban Development suggests an association do so by “imposing conditions authorized by CC&Rs or other legal authority” and by using “such mechanisms as notices of violations, threats of fines, and fines.” In Cowpet Bay, two women with disabilities owned separate condominiums within the Cowpet Bay Association (“Association”) and sought accommodations for their disabilities in the form of emotional support dogs. Each woman notified Continued on page 4 www.cacm.org | The Law Journal 3

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How do you respond when someone asks what you do for a living? For most, we simply indicate that we work in the HOA industry. But for managers, that answer is far more complicated! Managing a community association means many things. Community managers are the first line of communication, offense, and defense, on all matters. Managers assist boards in conducting meetings, issuing work orders, performing site walks, writing letters and conducting association elections, to name a few. Most importantly, managers are tasked with getting to know – and understand – each board member so that he/she can figure out the most effective way to work with the group, and that’s no easy task! Getting strangers to trust your advice can be a challenge, especially if that board had a poor experience with managers in the past. Thankfully, industry organizations – like CACM – aim to educate community managers so they have the knowledge necessary to gain that trust. This issue will provide an overview of important topics facing common interest developments in California. It is my hope that these articles will not only educate community managers but will also give them another tool to help gain the trust of their boards.

Zer Iyer, Esq., is a partner with the law firm Angius & Terry LLP in Walnut Creek. She has 13 years experience providing general counsel to California community associations.

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the community manager in writing along with medical proof of their disabilities, doctor prescriptions, and emotional support dog certifications, but did not specifically “apply for an exemption to the rule,” which prohibited pets in the units. Eight months later, the board president emailed the women notices of violation and gave them ten days to submit such a request for exception, or face a fine. Three months later, the board voted that the plaintiffs were in violation of the “no dogs” policy and issued a $50/day fine. Meanwhile, three homeowners (who knew about the plaintiffs’ requests for accommodations) regularly vented their anger in an online community blog forum and publicly identified the women, making derogatory and vicious comments and threatening liens and foreclosure. Ultimately, under a new president, the board granted the accommodation requests and waived the fines. The women sued Cowpet Bay, its board president, and the three homeowners. The Court of Appeal upheld causes of action against the association for its refusal to seize the “opportunity to accommodate” (whether by declaring plaintiffs in violation of the “no dogs” rule, by fining them $50 a day, or through the undue delay in resolving the matter.) This, despite the fact plaintiffs were never actually deprived of their dogs, and that the association ultimately agreed to waive fines and grant accommodation. More interestingly, the Court upheld the claims against the three internet bloggers stating a reasonable jury could find their cyber comments constituted harassment “sufficiently severe or pervasive as to interfere” with plaintiffs’ fair housing rights. Community associations, their directors, and homeowners, can minimize Fair Housing Act liability by taking these important steps: (1) Keep your eyes open for potential discrimination and accommodation requests. These “opportunities to accommodate” might look like neighbor-to-neighbor disputes where one neighbor is from a protected class, or seemingly unconcerned violations of governing documents. (2) Sincerely

respond in writing that the accommodation request /discriminatory allegation will be reviewed in a timely manner. (3) Quickly arrange and engage in an interactive process (and document your efforts!) to understand any discrimination allegations or accommodation demands. Then, (4) request additional documentation of the disability (i.e. letter from doctor or other health care professional, etc.), if needed. (5) Brainstorm with the complainants to discuss additional reasonable alternatives if the accommodation request is unreasonable. Otherwise, (6) promptly respond with a written acceptance letter if the accommodation request is reasonable. (7) Use the legal mechanisms at your disposal (i.e. Rules & Regulations; CC&Rs) to immediately respond to and (hopefully) extinguish homeowner harassment via notices of violations, threats of fines and, if necessary, actual fines or legal action. Such notices and fines not only serve as a deterrent to harassment but also create a “record” of community association response, both useful facts to have should the association or its members need to defend a discriminatory housing lawsuit.

ABOUT THE AUTHORS Mark T. Guithues, Esq., founding partner of Community Legal Advisors Inc., has provided general counsel and assessment collection services to community associations in Orange and San Diego Counties.

Mark Allen Wilson, Esq. is an attorney with Community Legal Advisors, Inc., specializing in community association law.

Nuisance Abatement From aggressive dogs to growing trees: why pre-litigation dispute resolution efforts should be made and when to go to court for relief BY CRAIG L. COMBS – WASSERMAN KORNHEISER COMBS, LLP

hat is a nuisance? Nuisance is generally defined in the law as “a condition that interferes with a person’s use and enjoyment of their property.” Homeowner association nuisances can take many forms: aggressive dogs, loud music, architectural and landscape violations, unauthorized short-term rentals, smoking odors, leaking bathtubs, etc. Indeed, many CC&Rs define “nuisance” as any act or omission which constitutes a violation of the CC&Rs. When a nuisance arises in your community, early dispute resolution efforts can make a big difference in the final outcome whether those efforts succeed or fail. If early dispute resolution efforts succeed, then you have helped spare your community from further negative effects of the nuisance. If early dispute resolution efforts fail, then you have helped preserve your community’s right to recover attorneys’ fees if litigation becomes necessary.

Should the Association Become Involved? The first step in dealing with a nuisance is to determine whether the association should even be involved in abating the nuisance. That often revolves around whether the nuisance is a “private nuisance” or a “public nuisance.” A “private nuisance” is one that affects a small segment of

a community or often just one other resident. Examples of private nuisances can include complaints about smoking or noise from one residence affecting the occupants of just one other residence. Generally, an association should stay out of a dispute between two owners over a private nuisance. The complaining owner has the right to enforce the CC&Rs just as the association does. A “public nuisance” is one that affects a wider swath of the community or the common area. Examples include party houses, ongoing water leaks, aesthetic violations, and unauthorized short-term rentals. The board will often need to take the lead in abating a public nuisance within the community.

Pre-Litigation Dispute Resolution Be aware that California law strongly encourages prelitigation dispute resolution in the homeowner association context. If possible, every stage of pre-litigation dispute resolution should be pursued. The California Common Interest Development Act contemplates three levels of pre-litigation dispute resolution: disciplinary hearings, internal dispute resolution (“IDR”) and alternative dispute resolution (“ADR”). DISCIPLINARY HEARING – The first step is to call the owner to a disciplinary hearing

pursuant to Civil Code § 5855. This often is the first opportunity for the board and owner to discuss resolutions to the problem. INTERNAL

DISPUTE

can result in the association’s court complaint being dismissed or the judge could decide later to reduce or even eliminate an attorneys’ fees award.

RESOLUTION – If a disciplinary

hearing fails to resolve the dispute, then the association should attempt to engage the owner in Internal Dispute Resolution (“IDR”) pursuant to Civil Code §§ 5900 – 5920. This usually entails a Board member appointee meeting with the Owner in an effort to reach a signed, written agreement to resolve the dispute. ALTERNATIVE

DISPUTE

RESOLUTION – If the nuisance

still has not risen to the level of an emergency, and disciplinary hearings and IDR have failed to abate the nuisance, the association should send a “Request for Resolution” to the owner pursuant to Civil Code § 5935. Sending a proper Request for Resolution can be critical whether or not ADR resolves the dispute. Failure to do so

Taking it to Court: Preliminary Injunctive Relief T E M P O R A R Y RESTRAINING ORDER – A

temporary restraining order (“TRO”) is an order a court makes before a formal hearing can be held. TROs should only be sought when there is a true emergency and are rarely granted by the court. Examples include a vicious dog that is not being properly leashed or has already bitten a person or animal, fire hazards, toxic waste, ongoing water leaks, or ongoing loud noise disturbances. PRELIMINARY INJUNCTIVE RELIEF – Preliminary injunctive

relief is when a court makes an order after a formal hearing Continued on page 6

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Nuisance Abatement Continued from page 5

that governs the conduct of a party prior to trial. Considering that most trials are heard more than 12 months from the date a complaint is filed, a key consideration is whether the association can wait one to two years before the nuisance is abated. Examples where the board may not wish to wait for trial before obtaining relief might include serial short-term leasing of a property in violation of the governing documents, major aesthetic violations which negatively affect property values, prohibited animals which are causing problems in the community, etc. To support a TRO or preliminary injunction, the association’s attorney will need evidence. Management can assist by carefully logging all incident reports and written complaints.

The Takeaway Nuisances happen. However the nuisance is ultimately resolved, management’s role is to help the board understand and adhere to the pre-litigation dispute resolution requirements and to document, gather and convey facts which will support the association’s position.

ABOUT THE AUTHOR Craig L. Combs, Esq. is an attorney with Wasserman Kornheiser Combs, LLP in San Diego. He has 14 years experience as general counsel for residential and commercial common interest development associations.

Understanding Indemnification What It Is and Why It Is Important BY JOHN D. HANSEN, ESQ. – BAYDALINE & JACOBSEN LLP

any contracts contain the words “shall indemnify, defend, and hold harmless” in an unusually long sentence with several variations on the word “claim,” or they should. It is often a point of negotiation, but many managers may not understand why it is so important and why a few words can materially change the meaning of a clause. Indemnification clauses are a risk shifting provision in a contract. They make one party specifically responsible for a claim against the other party. They may be fault-based, which means Party A is only responsible for a claim against Party B if Party A did something wrong, either negligently or intentionally. They may also not be fault-based, meaning Party A is responsible for a claim against Party B no matter what. Indemnification clauses may also be mutual, which means each side is responsible for claims they cause against the other. This is a common middle-ground when negotiating these clauses because it generally means each side is responsible for his or her own actions and claims against them by third parties not caused by the other. These clauses are important to associations when a contractor is performing work that exposes an association to risk of a claim against it. Indemnification clauses usually contain three distinct words or phrases: “indemnify,” “defend” and “hold harmless.” To indemnify means to reimburse another for a loss suffered because of a third party or one’s own fault. That means Party A has to pay for a judgment rendered against Party B. To defend means to pay for or provide a defense to another party because of a claim from

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a third party. That means Party A pays for the defense of a claim against Party B, regardless of the eventual outcome. Hold harmless means to absolve or relieve another party from responsibility for damage. That usually means Party A will not hold Party B responsible for a claim or loss against Party A. Many clauses contain all three words, but that may not make sense all the time. For example, a defense requirement may mean Party A has to pay for a defense of a frivolous claim that Party A had nothing to do with. Each of these three terms will affect how claims are handled and paid for. If a full indemnification clause (all 3 terms) is in effect and a claim is brought against Party B, it would then demand a defense from Party A. Party A would then pay for an attorney for Party B, but if Party A refused, Party B would need to file a cross-action against Party A and pull it into the lawsuit. If there was no right to a defense, Party B would have to pay for its defense and then seek reimbursement for a judgment at the end of the case. Clearly, this is something to be avoided, since defense costs can be substantial. It is important to check all contracts for this language, and seek legal advice regarding what it means, whether it should be changed, and what else should be added. Indemnification clauses shift risk, so it is important to ensure boards are making an informed decision about the risk and what it could mean. These clauses are implicated when a lawsuit comes, and that is not the time to learn about what the clause means and how it may be detrimental to an association.

ABOUT THE AUTHOR John D. Hansen, Esq. is an attorney with Baydaline & Jacobsen LLP in Sacramento. He has provided general counsel to community associations for nine years.

Understanding Professional Service and Design Contracts BY J. SPENCER EDGETT, ESQ. & JOHN F. BAUMGARDNER, ESQ. – CHAPMAN & INTRIERI, LLP

hen engaging professionals to perform services related to construction work it is critically important to ensure that the engaged contractors are qualified and licensed to perform the work. Depending on the scope of work it may be necessary to hire an architect and/or structural engineer as part of the design team. If the contractor does not maintain the applicable license for the project, not only is there a risk of substandard work but in the event of damage and/or injury caused by faulty workmanship, the contractor’s insurance policy may exclude coverage for the work performed. In addition, the association could be held liable for hiring an unlicensed professional.

Clear & Detailed Scope of Work The scope of work (i.e., services to be provided) under the contract should be clear and detailed. Ambiguities in the scope of work can lead to future disputes and/or unforeseen and not budgeted for expenses. For example, an architect may be hired to perform design work only in which case the final product would be a set of drawings to use to obtain bids, permits and perform the construction work, any services beyond that would be at additional costs (i.e., contract administration and oversight of the construction). These additional services should be discussed and included in the contract if necessary.

Does the Contract Comply with Governing Documents? Prior to entering into any contract, the governing documents for the association should be reviewed to confirm whether there are limits on the board’s authority to enter into a contract without member approval. There are often limits on duration (i.e., contracts for work in excess of one year). The terms of the contract must not violate the governing documents.

Review Insurance & Indemnity Terms to Reduce Future Liability When reviewing construction contracts, it is important to closely review the insurance and indemnity terms to ensure that the association is protected. To protect the association against liability for physical injuries, the association should ensure that the professional has workers’ compensation, commercial general liability with completed operations, course of construction, and/or errors and omissions coverage as appropriate and in the desired amounts from highly rated carriers. The association should also confirm that there are no exclusions for the work to be performed. Some policies exclude coverage for condominium (or multi-family) projects and/or may require a special endorsement (a separate agreement) for such coverage. The association should also include a provision requiring the association, its managers and Board of Directors be identified as additional insured under the policy. The contract must require and provide the association with the ability to verify adequate coverage. Indemnity provisions can also provide protection to the association by requiring the professional to defend and pay for claims made against the association related to the work performed by the professional. However, indemnity protection was recently limited by Civil Code § 2782.8 for design professionals. These provisions now only apply to claims arising out of the “negligence, recklessness, or willful misconduct of the design professional.” (Id.) Additionally, the cost of defense owed by the design professional cannot “exceed …[their] proportionate percentage of fault.” (Id.) This new law cannot be “waived or modified by contractual agreement, act, or omission of the parties.” (Id.)

Understanding Warranty Terms The association should include language regarding any warranties that are offered. When evaluating any proposed warranty, it is important to consider what is covered, who can make a warranty claim, the warranty claim process, and the coverage period. Many warranties are voided if the work and products are not maintained as required by the contractual language. After any construction work is completed, the association should update any maintenance manuals to ensure that proper maintenance is being performed and documented to maintain the applicable warranties.

Review Contract Language and Insurance Coverage Depending on the scope and complexity of the work being performed, the association should engage legal counsel and/or their own insurance agents to evaluate the contract language and insurance coverage being provided. The association can significantly reduce its future risk by ensuring adequate insurance coverage is in place for the work and that the contractual provisions properly shift risk to the contractors.

ABOUT THE AUTHORS J. Spencer Edgett, Esq., is an attorney with Chapman & Intrieri, LLP in Alameda. He specializes in CID litigation and provides general counsel to community associations.

John F. Baumgardner, Esq. is a attorney with Chapman & Intrieri, LLP in Roseville. He specializes in common interest development (CID) and civil litigation.

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Water Use: Update on the Status of Drought Related Laws BY BRIAN D. MORENO, ESQ., CCAL – SWEDELSONGOTTLIEB

or the past few years, professionals in the common interest development industry have had to keep-up with drought legislation and related operational issues. With an increasing population, climate change, and severe droughts, California stepped into action on state and local levels to preserve California's limited water supply. Indeed

looking at maps of previous record-low snow pack levels and reading statistics on the severity of the California water shortage, California was in trouble and had no choice but to implement strict and aggressive policy changes that were reflected in our laws. These laws created confusion in our industry both in terms of maintenance and enforcement issues. Thankfully with the recent rainfall, the applicability of water-related Davis-Stirling Act statutes have changed by virtue of California not being in a state of emergency. That said, associations must still be proactive in anticipation of what will almost certainly be

future drought emergencies and statutes that affect CIDs. By way of background, in January 2014, the California Legislature enacted AB 2100 (i.e., Civil Code § 4735), which prohibits associations from fining association members for reducing water consumption on lawns and landscaping during any period for which the Governor has declared a state of emergency, or a local government has declared a local emergency, due to drought. AB 2104 amended § 4735 to prevent associations from enacting architectural rules that prohibit or restrict the use of low water-using plants to replace existing turf. SB 992 further amended section 4735 to add an exemption for community associations that use recycled water for irrigating landscaping from the fining prohibition. On April 1, 2015, Governor Brown declared a state of emergency by signing Executive Order B-29-15, which called for actions to save water, increase enforcement to prevent wasteful water use, streamline the state's drought response and invest in technologies that will make California more drought resilient. With Executive Order B-29-15, certain aspects of § 4735 were activated. Moreover, on September 4, 2015, Governor Brown signed AB 349, which amended section 4735 and prevents associations from

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prohibiting the installation of artificial turf. AB 349 also amended § 4735 to prohibit any requirement that an owner remove or reverse waterefficient landscaping measures that were installed in response to the declaration of a state of emergency, upon conclusion of the state of emergency. Ultimately, the drought legislation brought about positive change for drought levels; however, the legislation also created confusion and difficulty for community associations both in terms of maintenance obligations and governing document enforcement. Thankfully, on April 7, 2017, after California had experienced positive levels of rainfall, Governor Brown issued Executive Order B-40-17, which put an end to the state of emergency. The order also changed the applicability of Civil Code § 4735. Section 4735(c) – which prohibited associations from fining an owner for failing to water their yards – is no longer applicable. While Executive Order B-40-17 lifts some of the restrictions of community associations, other statutes are not affected by the emergency reversal. For example, associations are still precluded from penalizing owners for installing droughttolerant landscaping. Moreover, § 4735 still prevents associations from banning artificial turf. And, of course, if the Governor (or any local government) decides to declare a state of emergency

again, such declaration will reactivate the fining restriction of § 4735. After Governor Brown ended the drought State of Emergency, the State Water Board partially repealed drought emergency conservation regulations. At present, as directed by Executive Order B-40-17, the State Water Board is conducting rule making to prohibit wasteful water use practices. According to the State Water Board, “California droughts are becoming longer and more severe as warmer winter temperatures, driven by climate change, reduce water held in the snowpack and result in drier soil conditions.” Given this, associations should be proactively amending their governing documents to anticipate additional water conservation emergencies in the future and inevitably what will be additional drought legislation that targets community associations. Associations should consult with their legal counsel to adopt architectural rules and other rule changes that appropriately anticipate future drought legislation and emergency declarations from the Governor and/or local governments. ABOUT THE AUTHOR Brian D. Moreno, Esq., is an attorney with SwedelsonGottlieb representing community associations throughout Southern California.

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