SUMMER 2020
F E AT U R E D A RT I C L E S :
WHAT YOU NEED TO SEE BEFORE YOU PAY A VENDOR PG. 07 PROPER MANAGEMENT AND HANDLING OF RESERVES PG. 11 ANIMAL AGGRESSION IN HOAS When pets and assistance animals go bad, what can and should be done? PG. 17
IS IT SMOKY IN HERE? What associations can do to address smoking in common areas and inside units. PG. 02
HOW THE UPCOMING CENSUS WILL IMPACT HOAS PG. 21
A PRACTICAL REVIEW OF COMMUNITY MANAGEMENT LAW
2020 CACM SUMMER LAW JOURNAL EDITORIAL COMMITTEE CHIEF EDITOR Fred Whitney, Esq. Whitney | Petchul
ATTORNEY GUEST EDITOR Dylan Grimes, Esq. Angius & Terry LLP
IS IT SMOKY IN HERE? What associations can do to address smoking in common areas and inside units. By Rhonda R. Adato, Esq.
A
COMMITTEE MEMBERS Jim Judge, Esq.
Eric Kazakoff, CCAM
The Judge Law Firm
Canyon Lake POA
Wayne Louvier, Esq.
Jill Morgan, CCAM
and the secondhand smoke they create. If
Adams / Stirling
Allure Total Management
secondhand smoke drifts from a residence
Dyanne Peters, Esq.
Hamlet Vazquez, MCAM-HR
or common area into a neighbor’s home, is
Delphi Law Group, LLP
Action Property Management
that a nuisance? Or do residents generally
ssociations are often faced with the question of how to deal with smokers
have a right to enjoy a cigarette in peace? 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.
How can associations deal with this issue in a fair, even-handed way, and what legal tools do they have at their disposal? First, the facts. According to the Center
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.
for Disease Control’s (“CDC”) website,
Interested in advertising in CACM’s Law Journal?
years: smoking is down from 20.9% of
Reach out to us at marketing@cacm.org
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THE LAW JOURNAL | W W W. C AC M . O RG
cigarette smoking is the leading cause of preventable disease and death in the United States, accounting for more than 480,000 deaths every year. In 2018, nearly 14 of every 100 U.S. adults, aged 18 years or older, smoked cigarettes. However, cigarette smoking has significantly declined in recent American adults in 2005 to 13.7% in 2018.
Statistics also suggest that cigarette smoking
included a standard nuisance provision.
is generational: current cigarette smoking is
Plaintiff homeowners complained to the
lowest among those aged 18 to 24 years old, at
association about their neighbors’ incessant
8.4%.
smoking, which caused secondhand smoke to constantly enter their unit and aggravated
So what does this mean for associations?
their son’s asthma. Plaintiffs filed suit against
Smoking rates are declining in the U.S.
both the neighbors and the association,
Research conducted in recent years has
alleging in part that the association failed to
also brought the harmful effects of tobacco
enforce the CC&Rs nuisance provision. The
smoke to light, and local, state and federal
jury found that the association breached its
governments have made a concerted effort
CC&Rs. Plaintiffs were awarded damages and
to inform the public of these harmful effects.
the association was required to pay plaintiffs’
However, smokers are still out there. As a
attorneys’ fees.
result, non-smokers appear to be increasingly less tolerant of smokers because they are
There are challenges, however, associated
more aware than ever of the harmful effects
with enforcing a nuisance provision. What is
of secondhand tobacco smoke. Non-smoking
or is not a nuisance is a subjective standard.
residents are now demanding that association
After all, what is a nuisance to one person may
boards take action. Is an association obligated to respond? As a general matter, associations are required to enforce nuisance provisions set forth in their CC&Rs. Secondhand tobacco smoke traveling into a residence can be reasonably interpreted to be a nuisance. Associations should enforce their CC&Rs, as appropriate, against owners when secondhand smoke from their residence constitutes a nuisance to other residents. An association can face steep penalties for failing to enforce its CC&Rs. By way of example, in Chauncey v. Bella Palermo Homeowners Association et al, (2013) Orange County Superior Court Case No. 30-201100461681, the defendant association’s CC&Rs 3
THE LAW JOURNAL | W W W. C AC M . O RG
Continued on page 4
Continued from page 3 not be a nuisance to another. Further, it may
permitted smoking in all outdoor common
be difficult for an association to determine
areas. The plaintiff, a resident with asthma,
if smoke is really transferring, or where the
sued the apartment complex, alleging that
smoke is coming from. For that reason, an
the failure to abate the tobacco smoke in the
outright ban on smoking may be easier to
outdoor common areas was a nuisance. The
administer, since it is an objective standard.
trial court granted the apartment complex’s demurrer to plaintiff’s first amended complaint
But do associations have authority to enact
without leave to amend. Plaintiff appealed.
an outright ban against smoking tobacco
The appellate court ruled that plaintiff alleged
in the community? And will a court uphold
a valid nuisance claim. Birke is helpful for
such a ban as enforceable? Unfortunately,
California associations who wish to prohibit
we are not aware of a published California
smoking. It underlines the concept that
case regarding enacting a total smoking ban.
landlords may have an affirmative obligation
However, in Birke v. Oakwood Worldwide et
to mitigate/address secondhand smoke as part
al. (2009) 169 Cal.App.4th 1540, a residential
of their existing “duty to take reasonable steps
apartment complex banned smoking in all
to maintain its premises in a reasonably safe
indoor common areas and indoor units, but
condition.” Community associations are not landlords per se, but California courts have treated them like landlords in cases such as Frances T. v. Village Green Owners Assn. (1986) 42 Cal. 3d 490. Case law from other states is also helpful, although not controlling in California. In the Colorado case Christiansen v. Heritage Hills 1 Condo. Owners Ass’n, Case No. 06CV1256 (Colo. Dist. Ct. Nov. 7, 2006), the defendant association amended its CC&Rs to ban smoking within the boundaries of the project. The court evaluated the ban under the standard of whether the association’s actions were reasonable, made in good faith, and not arbitrary or capricious (which is very similar to the California business judgment rule standard). The court found that
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THE LAW JOURNAL | W W W. C AC M . O RG
the structure of the association’s building allowed smoke to migrate, and that residents had tried other means of mitigating the smell. The court also noted that the smoking ban was reasonably investigated and passed by 3 out
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of 4 owners after trying other options to solve the issue. The court further stated that the Colorado legislature had recently passed bills regulating secondhand smoke, and that citizens do not have a fundamental right to smoke. As such, the ban neither violated public policy nor infringed on any of the owners’ fundamental rights. The court additionally held that the
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plaintiff smoker’s actions negatively affected
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the remainder of the community. Hopefully, a California court ruling on a community-wide smoking ban would apply similar reasoning as in Christiansen. So what options does an association have to address smoking? As stated above, an association should enforce any nuisance provision set forth in its CC&Rs. We also believe associations are on firm ground to ban smoking in common areas. Associations typically have the right to control their common areas.
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An association’s governing documents may additionally grant it authority to take action in the interest of protecting the health and safety of residents. The tide of public opinion
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Continued on page 6 PACWEST.COM
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THE LAW JOURNAL | W W W. C AC M . O RG
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That way, all new members will be on record notice of the ban, and existing owners will be less likely to raise a challenge. However, a grandfathering provision will not resolve any nuisance claims resulting from any smoke transmission between residences, and might even make such claims more likely since all new owners will presumably be non-smokers. In sum, associations should tread carefully and consult their legal counsel no matter which course of action they choose. Tobacco smoking may also decrease with time since younger people tend to smoke less, statistically. However, associations may face
Note that a community-wide ban on smoking is riskier than just banning smoking in common areas. While an association might be heralded for being health conscious and innovative, it also risks being a test case in the California courts regarding the enforceability of such a ban. However, some associations may be willing to take that risk. Associations should keep in mind that banning smoking in the entire community should most likely be done via a CC&Rs amendment, rather than an operating rule change. Adopting a ban within residences via an operating rule change might result in a challenge from a homeowner on the grounds that the rule is unreasonable and exceeds the board’s authority. Associations can also mitigate the risk of a homeowner challenge by implementing a grandfathering provision. That is, by drafting a community-wide ban to only apply to members who buy their homes in the community after the CC&Rs amendment has been recorded. 6
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a new set of challenges in coming years. A November 6, 2019 NPR article reported that the proportion of high school students vaping nicotine has grown to 1 in 4. Young people have moved on to a newer, hipper trend: vaping and e-cigarettes. There is much less research regarding the harmful effects of these devices than traditional tobacco cigarettes, including their secondhand smoke effects, and the legislature has been slow to address the trend. Community associations’ next challenge might be regulating the negative effects of these devices rather than traditional tobacco cigarettes. ABOUT THE AUTHOR
Rhonda R. Adato is an Associate attorney at the law firm of Epsten, APC, where she handles transactional matters. She is based in Epsten’s San Diego office and joined the firm in August, 2018.
WHAT YOU NEED TO SEE BEFORE YOU PAY A VENDOR By Lisa A. Tashjian, Esq. and Tawnza M. Sofranko, Esq.
I
n order to keep a community running
Entering into vague or poorly written
smoothly, an association will likely
contracts can expose the board and the
hire vendors numerous times throughout
association to unnecessary liability. So, what
the year. Vendors provide services such
can managers do to help the board minimize
as exterior painting, plumbing, electrical,
exposure?
landscaping, tree-trimming, equipment repair, extermination, pool maintenance, street repair, and more. This article will
Pre-Contract Start simple and familiarize yourself with
navigate you through the process of
potential vendors. Social media often contains
selecting and hiring a vendor to complete
a range of reviews or feedback which can be
your community project by identifying tools
useful tools. A quick Google or Yelp search can
to be proactive and ultimately reduce risk.
provide you with review and feedback about the vendor. While online reviews may not be
As part of its fiduciary duties to the
the most reliable source, the feedback may
association, the board of directors
encourage you to ask questions and establish
must adhere to a standard of care in
guidelines with the vendor. Management
its operations and management of the
should also request references from the
association: it must act in good faith,
vendor, which should be used to contact the
reasonably, and in the best interests of the
vendor’s past clients for input and feedback
association. When it comes to contracts and
regarding the vendor’s work and performance.
vendors, performing due diligence includes investigating, asking questions, seeking answers, and, when necessary, consulting with experts. 7
THE LAW JOURNAL | W W W. C AC M . O RG
Continued on page 8
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Continued from page 7 Next, boards and management should review a vendor’s years of experience, business license, corporate status, and the like. Ensuring that the vendor has the requisite license and is in compliance with local, state, and federal laws is strongly recommended. If the project Association Counsel Assessment Recovery Document Amendments Election Rules Dispute Resolution Contracts & Insurance Construction Law Construction Defect Litigation Civil Litigation Appellate Law Developer Transition Fair & Senior Housing
requires substantial work in the community, it is prudent to confirm the contractor has a general contractors license. Additionally, legal counsel can perform a bankruptcy or litigation search to confirm the vendor has not been sued for poor quality of work. Legal counsel can also conduct research to verify whether the vendor has ever operated by another name, which may indicate the vendor is
Common interest development law – it’s complicated.
Contact us! www.epsten.com • 800.300.1704
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THE LAW JOURNAL | W W W. C AC M . O RG
trying to avoid liability from defective work on past projects.
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Don’t stop after reviewing one vendor! Before a
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vendor is selected and the contract is executed, the board has a duty to conduct a reasonable
association’s expectations and needs. The
investigation to ensure the vendor is offering
contract should also be sent to legal counsel
the best price for the scope of services promised.
to ensure the association is adequately
This means the board must review more than
protected.
one bid (industry standard is to review at least three bids). This does not mean the lowest-priced
First and foremost, the contract should always
bid must be chosen, it merely means the board
be in writing. The terms of the contract
must perform its due diligence and investigate.
should be clear, concise and include the
This evaluation process should be performed in
parties and the terms of work. Both parties
executive session to ensure confidentiality of the
should be able to clearly identify when the
bids.
work will start and end, how long the project will take from start to finish, and where the
Forming the Contract
work is to occur within the community. It is
Once the board has conducted research and
best to establish these guidelines before the
selected a vendor, the board’s job is not done.
project begins, which will allow the board to
While it may seem daunting, the board must
communicate important information to the
review the contract to confirm the terms
Continued on page 10
and scope of work are consistent with the 9
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Continued from page 9 residents, including work days and hours. Once the basics have been established, additional provisions must be identified and clearly set forth in the contract, including, but not limited to: Statement of work – Sets forth specifics of the work to be performed and should be as detailed as possible. Compensation - Establish a clear schedule/ timing for payments and amount. This section should also set expectations, for example ensuring that invoices will be provided (monthly, or by progress/phase). Termination – Identify and confirm the result should either party fail to perform their obligations or unsatisfactory work; confirm whether fines or penalties imposed will be imposed on the association if the contract is terminated. Indemnities – Vendor should agree to hold the association harmless from all damages, injuries, and/or claims that arise or relate to the work performed by the vendor and/or its employees as a result of the service/work provided. Insurance – Require a “certificate of insurance” directly from the vendor’s insurance agent with a written notice of 10
THE LAW JOURNAL | W W W. C AC M . O RG
cancellation, expiration, reduction in coverage, material changes, etc. The vendor must also provide “additional insured” endorsements listing the association and management, and provide same prior to commencing work. Mechanics Liens – Requires the vendor to seek releases of liens from suppliers and provide proof of same throughout duration of project. Warranties – Depending on the project, the service/product should be guaranteed against defects in labor, materials, or both. Completion – Define when completion occurs. Again, the contract should be reviewed and discussed by the board in executive session. Once the board and legal counsel have thoroughly reviewed and approved the contract, formal approval of the contract should be noted in an open meeting.
Completing the Project Upon contract execution, a designated contact or representative should be identified to monitor the work, including, but not limited to periodic inspections as work is completed, identifying procedures/guidelines for conducting work on the property, follow-ups, correspondence, etc. At project completion, a final walk-through must be conducted and close-out documents, if any, should be
executed. Close-out documents may include
property and money. Consequently, it is critical
obtaining necessary permits, final invoices,
that the board is proactive when entering into
a certificate of completion, lien releases,
contracts which includes researching, asking
etc. Now, you can pay the vendor! Although
questions and seeking legal guidance when
the contract may call for progress payments,
appropriate.
at least 10% of the project cost should be withheld until the final walk-through, which will ensure the vendor makes final fixes, if
ABOUT THE AUTHORS
necessary.
Lisa A. Tashjian, Esq. and Tawnza M. Sofranko, Esq. specialize in general
At the end of the day, the members have
counsel, litigation and assessment collection at Beaumont Tashjian in Woodland Hills. Tashjian has been in the industry 20 years and Sofranko one year.
placed the utmost trust and confidence in the board to manage and protect association
PROPER MANAGEMENT AND HANDLING OF RESERVES By Michael T. Kennedy, Jr., Esq.
A
board of directors has a significant
that means. A good definition of the legal
responsibility to the membership of
concept of “fiduciary duty” can be found
an association; insofar as a member’s unit is
in the jury instruction on the topic, when
usually their largest investment, and by buying
a judge instructs a jury what the relevant
into a common interest development, they
law is at the conclusion of a trial. That
delegate the management of that investment
jury instruction is as follows: “A fiduciary
to the board. That is why California law
duty imposes on a board member a duty
recognizes a board member’s responsibility as
to act with the utmost good faith in the
“fiduciary” in nature.
best interests of the membership.”
Everyone in our industry has heard this term, but perhaps not everyone appreciates what
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THE LAW JOURNAL | W W W. C AC M . O RG
Continued on page 13
Letter from the
Guest Editor Dear Members: As I write this we are still in the thick of
•
COVID-19 shelter in place orders. I hope by the time many of you read this that we are back
Call people you haven’t talked to that you miss.
•
in our offices, gyms or perhaps sitting by the
Do something nice for someone in your house (I like doing dishes for this one).
pool. Above all, I hope we all take with us the
•
Keep a journal of your experience.
positives that came along with this national
•
Limit your consumption of social media
pandemic. Many of us have learned through this process,
and news to one hour a day. •
Make a plan for your day and stick to it.
that our employees and ourselves are productive when working from home. We have learned
Finally, use this opportunity, whether it has
that technology, such as Zoom, makes attending
passed or continues, to practice gratitude.
board meetings far less cumbersome, and greatly
Many of us have been able to keep our jobs
reduces windshield time. We have all had the
because of the industry we work in. And as I
opportunity to hit the reset button, and re-
know many of you have experienced, this is a
evaluate what is important to us.
very busy time for all of us. Being busy is what
If when you read this we are still at home,
most of the country is hoping for.
sheltering in place, then you are aware that it
In closing, I want to thank all the members of
allows us all a lot more “me time” that we can
the Editorial Committee for this issue of the
use to our advantage. Let me share with you
Law Journal. I also want to thank Patty, Judy
some advice that was passed to me that has
and Emily for their tireless work.
really helped: •
Take this time to get better at something.
Cheers!
Learn to play the guitar, paint, sing, knit or cook. •
Read more.
•
Workout.
•
Clean out your email inbox, organize yourself.
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ABOUT THE AUTHOR
Dylan D. Grimes, Esq. is a partner with Angius & Terry, LLP. Grimes has more than 15 years of legal experience, specializing in construction defect law.
Continued from page 11 That “utmost duty” includes managing the association’s finances and the repair and maintenance of the common areas. Reserves
CONSTRUCTION DEFECT LITIGATION
cover both; they are the association finances set aside for repair and maintenance. There must be proper reserves to perform repairs and maintenance. Think of it as the association’s way of saving up for those projects. If the association has not saved up enough to pay for the project when it’s time for that project, either the project will have to be postponed, or the scope will have to be narrowed. Either way, the building components will not be able to be maintained the way that they need, making future repairs even more expensive. The only other alternative in the event of a
WHAT TO LOOK FOR Staining or discoloration below decks and at entry landings Excessive cracking at tile flooring, garage slabs or patio Staining or dampness at underground parking garage Cracking or step cracking at perimeter block wall
Stained drywall at window sills and ceilings Fractures or cracks along private streets, common area slabs Frequent and excessive cracks at drywall (interior) or stucco Leaks or staining at or around common area planters
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reserve shortfall is to pass the burden onto the membership via a special assessment or loan, neither of which is likely to make the members happy. 1.Association and board responsibility to properly update reserves (Davis-Stirling, CC&Rs, fiduciary duties and the Business Judgment Rule) a. Civil Code § 5550(a) board responsibility to “cause to be conducted a reasonably competent and diligent visual inspection” b. Common CC&R provisions requiring inspection c. Failure to follow maintenance schedules as SB800 defense
Continued on page 14 13
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®
Continued from page 13
Talk to us about your community association needs. We can help.
d. Business Judgment
Finance your essential projects:1 • Building Repairs
Rule; violation of
• Improvement Projects
governing documents
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(and by extension the Civil
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Code) is not within board discretion and thus not subject to Business Judgment Rule)
Larry Hooper Southern California 714.864.5171 LHooper@popular.com
To ensure accuracy, Civil Code Section 5550 requires that an association’s
1.800.233.7164
reserve study be updated at least every three years. Additionally, the CC&Rs and Maintenance Manual provided by the original builder will often require
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1. Subject to credit approval. Copyright © 2018 Popular Bank. Member FDIC.
regular inspections of components that the association is obligated to maintain. Failure to follow the Maintenance Manual is one of only seven (7) possible defenses a builder has to an SB800 claim, and the one most often argued by the builder’s attorney in defense of a claim. Additionally, if a board decides not to have the reserve study updated (and/ or to conduct the required inspections) due to cost or other consideration, they likely do not have the protection of the Business Judgment Rule, which protects board members from the members’ second-guessing many other types of decisions. There are two components to a reserve study update: a financial analysis and a physical analysis. The financial analysis includes a reserve funding plan and an assessment 14
THE LAW JOURNAL | W W W. C AC M . O RG
of reserve fund strength. These include an analysis of past projections, as well as projections of future contributions and liabilities. The assessment of the reserve fund strength looks backwards and asks; (1) Has the association been setting aside enough money for future repairs? And (2) If a new roof is needed in 5 years, are they saving enough to pay for it? A physical analysis requires more forward looking and involves an assessment of the physical condition of those components that the association is obligated to repair and maintain. This includes ensuring that the estimated Remaining Useful Life (“RUL”) is estimated accurately, that components are aging as predicted, and also to ensure that
estimated repair/replacement costs are
study updates a few years ago, and those guidelines
accurate. For example, if the last reserve
state that for a physical inspection of the project
study update estimated that the roof has
to be “reasonably competent and diligent” it
8 more years’ useful life, has the roof been
should be done by a general contractor or other
aging as predicted so that that estimate
experienced business partner.
is still valid? If a given component, in this case, the roof, has been deteriorating
There is an additional component of the physical
faster than predicted it will need to be
inspection that was just added to the Davis-Stirling
replaced sooner, so that line item in the
Act in 2020. Every third reserve study update
reserve study is not under-funded. If it
(that is every 9 years) requires a more in-depth
will last longer than predicted in the last
inspection of anything with a walking surface at
update, then that line item may be over-
least six feet off the ground, as well as all of its
funded and some funds can be reallocated
load bearing and waterproofing components. All
to some other component.
these components must be inspected by a design professional,
Calculation of the RUL includes an
such as an architect or
assessment of the quality of materials
structural engineer.
used in original construction, the age of
This requirement,
the component, the weather exposure/
which covers
usage of the component, as well as
only wood framed
any other factors unique to a given
construction with at
association. Likewise, the replacement
least 3 residential units
cost for components must take into
per building,
account the quality of materials to be
is a response
used, costs of labor and materials in
Continued on page 16
that marketplace, as well as permits, fees, disposal of materials removed, and any other unique factors (access for the contractor in an urban setting, etc.) The physical inspection component of the reserve update must also include “a reasonably competent and diligent visual inspection.” (Civil Code Section 5550(a)). The California Bureau of Real Estate published guidelines for reserve 15
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Continued from page 15
In older projects, the cost of inspections themselves should be added to reserve
to the tragic collapse of an apartment
studies, and the result will be the discovery of
balcony in Berkeley in 2015, where six college
deferred maintenance and previously unknown
students died. This is a much more in-depth
deterioration, requiring an adjustment to the
investigation of balconies, walkways, and stair
reserves. In newer projects, deterioration of
landings.
components mean construction defects. The good news for those newer projects is that the builder can be forced to either conduct or fund repairs through a Right to Repair Act claim. The cost of these inspections will vary widely by the type of construction, and associations are strongly encouraged to engage qualified inspectors early, not just to see if there are life safety issues, but also to design an inspection program that will comply with this new requirement and determine the cost of inspections so that that cost can be added as a line item to the reserve study. Ensuring a reserve study is current and accurate, B2R's program ensures Common Interest Developments comply with inspection requirements of SB 326 while avoiding unexpected and onerous assessments to owners.
not just another of the myriad administrative tasks that a community manager must walk their boards through, is one of the most important tasks that ensure the physical and financial health of their associations.
The health and safety of your property owners and their guests is our priority. ABOUT THE AUTHOR
Michael T. Kennedy, Jr., Esq. is a Partner of Berding|Weil in
Call us: 714-955-4722 Email us: info@B2Rconsultinggroup.com www.B2RConsultingGroup.com
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THE LAW JOURNAL | W W W. C AC M . O RG
the litigation department. He has been involved in residential and commercial construction litigation for over 20 years.
ANIMAL AGGRESSION IN HOAs
When pets and assistance animals go bad, what can and should be done? By Craig L. Combs, Esq.
S
o revered is the bond between pets and humans that the California legislature
enacted Civil Code § 4715 which states that governing documents for community associations may not prohibit an owner from having at least one pet subject to reasonable rules and regulations. Further, the Fair Housing Act requires associations to permit residents to maintain an assistance animal regardless of restrictions in an association’s governing documents. Problems arise when pets and assistance animals (almost always dogs) become 17
THE LAW JOURNAL | W W W. C AC M . O RG
aggressive. From belligerent barking to actual biting, dogs can become nuisances, even dangers, to a community. This in turn can create liability for a community association.
When Does an Association Become Liable for an Aggressive Animal? It is well established that with respect to damage or injury caused by animals, an association’s duty is analogous to that of a landlord. Lamden v. La Jolla Shores
Continued on page 18
those considered dangerous by the insurance industry based on claims) and permit the board to have an aggressive animal removed within a short time period. Other associations may not have any specific language giving the board that right. However, nearly all governing documents permit associations to abate a nuisance, such as an aggressive animal. Accordingly, the element of the right to control the premises and have an animal removed is usually met in Certified Arborists
the community association context.
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Continued from page 17 Clubdominium Homeowners Assn., 21 Cal. 4th 249. The test of a landlord’s liability for dog bites is as set forth in Martinez v. Bank of America, 82 Cal. App. 4th 883. There are two elements to liability: 1. Prior knowledge of an animal’s aggressive or dangerous disposition; and 2. Right to control the premises and have the animal removed.
Right to Control The right of the board to control aggressive animals in association governing documents varies greatly. Some associations can have very specific language in their CC&Rs which prohibit certain breeds of dogs (typically 18
THE LAW JOURNAL | W W W. C AC M . O RG
Prior Knowledge Because the right to control is presumed, the element of prior knowledge is critical to avoiding association liability. An association can’t be held liable if it had no prior knowledge of an animal’s aggressive or dangerous disposition. Chee v. Amanda Goldt Property Management, 143 Cal. App. 4th 1360. But when management or the board becomes aware that a potentially aggressive animal is being kept within the community, the board must conduct a reasonable investigation and take appropriate action.
Addressing Aggressive Animals Appropriate board action when put on notice that an aggressive animal may be in the community is fact-driven. Chronic barkers, such as a dog behind a fence or on a balcony which barks menacingly at
passersby, are primarily noise nuisances.
promptly remove the aggressive dog can
Though the dog is incapable of causing
subject the association to liability should the
actual injury, aggressive barking can be truly
dog attack again.
frightening for some and annoying to almost everyone. In such cases the board should
Aggressive Assistance Animals
call the owner into a hearing and require the
Under the Fair Employment and Housing
owner take steps to quiet the dog. This can
Act (FEHA), an association may not refuse
include a muzzle, a “bark collar” and/or train
to “make reasonable accommodations in
the dog by attending “bark school.” If the
rules, policies, practices or services when
owner does not comply or the dog continues
these accommodations may be necessary to
to pose a nuisance, then the board should
afford a disabled person equal opportunity
first impose fines or other milder disciplinary
to use and enjoy a dwelling.” Cal Govt. Code
action before requiring removal of the dog.
12927(c)(1). Permitting a person to have a dog to alleviate disabilities is considered a
Where there is a fight between dogs, the
“reasonable accommodation.” Auburn Woods
facts can often be unclear and clouded by
I Homeowners Assn. v. Fair Employment &
emotional owners. Where there is no clear
Housing Com., 121 Cal. App. 4th 1578.
aggressor, the owners should at a minimum
However, aggressive dogs do not get a
be warned that further incidents may result
pass just because they are assistance or
in disciplinary action (fines and suspension of
support animals. It is not a “reasonable”
rights), and, if necessary, removal of the dog
accommodation where an animal poses a
from the community. Where it is clear that
nuisance or a danger.
one dog was the aggressor, the preliminary
Further, in the 2002 federal case
remedies of fines and suspensions might be
of Zatopa v. Lowe, in granting
bypassed in lieu of requiring the dog to be
a preliminary injunction
muzzled at all times while on common area or immediate removal. The most serious incidents involve dogs biting humans. An unprovoked attack on a human should generally result in the prompt removal of the dog. Given prior knowledge of the dog’s aggressive tendencies, the failure to
19
THE LAW JOURNAL | W W W. C AC M . O RG
Continued on page 20
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support animal, even though the dog had never acted aggressively, the court held that so long as reasonable alternative pets are acceptable to the landlord, then the disabled tenant has no right under the disability laws to insist on a pit bull. The landlords’ offer of a dog belonging to a safe and gentle breed constituted a reasonable accommodation under both federal and state law. Pursuant to that case, an association can prohibit the keeping of known dangerous breeds as assistance animals so long as the resident is permitted to keep another, gentler breed of dog. ABOUT THE AUTHOR
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20 THE LAW JOURNAL |
W W W. C AC M . O RG
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HOW THE UPCOMING CENSUS WILL IMPACT HOAs By Katrina E. Solomatina, Esq.
T
he Census is a survey administered by
and they are used to draw congressional
the U.S. government which accounts for
and state legislative districts.
every single person living in the United States. The count is mandated by the U.S. Constitution
It is also in the Constitution: Article 1,
and conducted by the U.S. Census Bureau, a
Section 2, mandates that the country
nonpartisan government agency. The 2020
conduct a count of its population once
Census counts the population in the United
every 10 years. The 2020 Census will mark
States and five U.S. territories (Puerto Rico,
the 24th time that the country has counted
American Samoa, the Commonwealth of the
its population since 1790.
Northern Mariana Islands, Guam, and the U.S. Virgin Islands).Â
Although participating in the census is required by law, even if you recently
The census provides critical data that lawmakers,
completed another survey from the
business owners, teachers and many others use
Census Bureau, California homeowners
to provide daily services, products and support
associations are not required to register.
for you and your community. Every year, billions
Do we know exactly how many HOAs are
of dollars in federal funding go to hospitals, fire
in California? Or are those numbers just
departments, schools, roads, and other resources
rough estimates?
based on census data. The results of the census also determine the number of seats each state will have in the U.S. House of Representatives, 21
THE LAW JOURNAL | W W W. C AC M . O RG
Continued on page 22
Continued from page 21
no legal existence due to expired CC&Rs or they did not follow the proper procedure to establish
In the past two years, the number of
themselves as CIDs; other HOAs just don’t bother
common interest developments (CIDs) in
to register. However, a complete and accurate
California has increased by 2.8%, with the
count is critical for you and your community,
most significant growth (3.7%) in Northern
because the results of the 2020 Census will
California; Southern California saw a 2.3%
affect community funding, congressional
increase. While it is not known what the
representation, and more. In addition, without
actual number of California homeowners
reliable demographic data, there is no way to
associations is, the generally accepted
track the crime rate in HOAs, and no way to
number is that California is now home to
determine the rate and monetary impact of
more than 50,000 CIDs statewide.
construction defect claims.
But exactly how accurate is this 50,000
Associations frequently raise questions about
number? Since California does not have
whether they should provide access for census
a legal requirement for homeowners
takers to their communities. Two of the most
associations to register, it is reasonable
frequently cited concerns have to do with
to suggest that the number is not entirely
security and privacy issues.
accurate. This is because some HOAs have
HOA Banking Seacoast Commerce Bank offers a full range of comprehensive banking and financial services for Homeowner Associations and property management companies.
HOA Banking Solutions:
Census Bureau. The law requires cooperation with census takers. As provided for in 13 U.S.C. §223: Whoever, being the owner, proprietor, manager, superintendent, or agent of any
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hotel, apartment house, boarding or lodging
Cash Management
house, tenement, or other building, refuses
Remote Deposit Capture
or willfully neglects, when requested . . . to
Lockbox Services ACH Organization
furnish the names of the occupants . . . or to
HOA Financing
give free ingress thereto and egress therefrom
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22
Census takers are official employees of the US
THE LAW JOURNAL | W W W. C AC M . O RG
to any duly accredited [census taker] . . . shall be fined not more than $500.
Associations should cooperate with census
Since census takers will often refuse to have
takers.
their ID badges photocopied, associations can
If one refuses to provide access to a census
census office and speaking to a manager. Also,
taker, they can be fined up to $500. The $500 fine is small, unless it is interpreted to mean per unit, then it could be
verify the person’s status by calling the local the census taker’s name and ID information can be written down so there is a record of who entered the building. In addition, some
significant.
managers, especially in high-rise communities,
What can an association do in response to
takers up to the resident’s unit or calling
a Census Survey Taker showing up at its doorstep? •
Ask For ID. Associations can require evidence that the person is a census taker.
•
Can you ask to copy a US Census Taker ID?
23
THE LAW JOURNAL | W W W. C AC M . O RG
may take an extra step in escorting the census the resident to find out if access will be permitted. These are just extra steps, which are not required by law, but seem to be a good community practice to follow to protect the residents.
Continued on page 24
Continued from page 23 Sometimes managers are called by people claiming to be census takers. They ask for the names of residents and for their contact information. For security reasons, associations can decline to give out information over the phone. If the person comes to the association’s management office and provides proper ID, the association should cooperate. In addition to security, privacy issues are often raised as a concern by association managers in response to questions from census takers. Are managers supposed to provide their resident’s contact information to a census taker? Such disclosure is not required. The managers can simply provide a total number of people residing in their association, without disclosing their names, addresses or any of their personal information. Although residing in a closed community does provide additional burdens on California associations regarding cooperating with U.S. Census takers, the Census is designed to benefit residents and if California association residents remain invisible, so do all their problems.
ABOUT THE AUTHOR
Katrina E. Solomatina, Esq. is HOA General Counsel with Hopkins & Carley, a Law Corporation in Palo Alto. She’s worked in the industry for seven years.
24 THE LAW JOURNAL |
W W W. C AC M . O RG
2020 LEGAL DIRECTORY
ASSESSMENT COLLECTIONS ALLIED TRUSTEE SERVICES Assessment Collection & Judgement Recovery Services Stefan Murphy Serving All of California For Over 26 Years 990 Reserve Dr., Ste. 208 Roseville, CA 95678 (800) 220-5454, Option 6 • Fax (877) 294-0601 smurphy@alliedtrustee.com www.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 www.alterracollections.com FELDSOTT LEE & CANFIELD Community Association Law Stanley Feldsott, Esq., Eric S. Canfield, Esq. Laguna Hills | San Diego 23161 Mill Creek Dr., Ste. 300 Laguna Hills, CA 92653 (949) 729-8002 • Fax (949) 729-8012 ecanfield@cahoalaw.com www.cahoalaw.com UNITED TRUSTEE SERVICES Trusted Partners In Assessment Collections Lisa E. Chapman 696 San Ramon Valley Blvd., Ste. 353 Danville, CA 94526 (925) 855-8554 • Fax (925) 855-8559 clientservices@unitedtrusteeservices.com www.unitedtrusteeservices.com
ATTORNEYS ADAMS | STIRLING PLC Community Association Law, New Developments Adrian Adams | Jasmine Hale | Nathan McGuire | Laurie Poole LA, OC, IE, SD, SF, SAC, Palm Desert & Carlsbad 2566 Overland Ave., Ste. 730 Los Angeles, CA 90064-5603 (800) 464-2817 • Fax (310) 945-0281 info@adamsstirling.com www.adamsstirling.com
BERDING | WEIL LLP Construction Defect Litigation | Community Association Counsel Tyler Berding | Steve Weil | Chad Thomas | Andrea O’Toole Walnut Creek | San Diego | Costa Mesa 2175 N. California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com www.BerdingWeil.com CHAPMAN & INTRIERI, LLP General Counsel & Construction Defect Litigation John W. Chapman, Esq. 2236 Mariner Square Dr., Ste. 300 Alameda, CA 94501-6468 (510) 864-3600 • Fax (510) 864-3601 jchapman@cnilawfirm.com www.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 www.attorneyforhoa.com EPSTEN, APC Community Assn. 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 www.epsten.com FIORE RACOBS & POWERS, A PLC Community Association Law and Assessment Collections Janet L.S. Powers, Esq., Peter E. Racobs, Esq. & John R. MacDowell, Esq. The Recognized Authority in Community Association Law Orange County | Inland Empire | Coachella Valley | San Diego County (877) 31-FIORE • Fax (949) 727-3311 jpowers@fiorelaw.com www.fiorelaw.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
ATTORNEYS CONT’D 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 www.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 www.hughes-gill.com THE JUDGE LAW FIRM Community Association Law James A. Judge, Esq. Arbitrators & Mediators, Assessment Collection Services 18650 MacArthur Blvd. 4th Floor, Ste. 450 Irvine, CA 92612 (949) 833-8633 • Fax (949) 833-0154 info@thejudgefirm.com www.thejudgefirm.com KRIGER LAW FIRM Community Association Law Bradley Schuber, Esq. 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 Community Association Law, Construction Defect & General Counsel David A. Loewenthal, Robert D. Hillshafer & Kevin P. Carter Woodland Hills | Santa Barbara | Westlake Village | San Luis Obispo 5700 Canoga Ave., Ste. 160 Woodland Hills, CA 91367-6579 (866) 474-5529 • Fax (818) 905-6372 info@lhclawyers.net www.lhclawyers.net MASSIE-BERMAN, APC Full Service Community Association Law Jonathan D. Massie, Esq., Andrew E. Berman, Esq., Adam C. Flury, Esq. 3588 4th Ave., Ste. 200 San Diego, CA 92103-4940 (619) 260-9010 • Fax (619) 260-9016 jmassie@massieberman.com www.massieberman.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 94901-3246 (415) 453-9433 • Fax (415) 453-8269 dfeingold@rflawllp.com www.rflawllp.com RICHARDSON | OBER | DENICHILO LLP Community Association Law, Assessment Collections Kelly G. Richardson, Esq., Matt D. Ober, Esq. & Robert M. Denichillo, Esq. Pasadena | Costa Mesa | Riverside (877) 446-2529 info@rodllp.com www.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 90064-1045 (800) 372-2207 • Fax (310) 207-2115 slg@sghoalaw.com www.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 www.tinnellylaw.com WHITE & MACDONALD, LLP Community Association Law, Construction Defect Law Steven M. White, Esq., Rob D. MacDonald, Esq. & James P. Hillman, Esq. 1530 The Alameda, Ste. 215 San Jose, CA 95126 (408) 345-4000 • Fax (408) 345-4020 info@wm-llp.com www.wm-llp.com WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Community Association Law Daniel C. Shapiro, Esq., & Michael W. Rabkin, Esq. 11400 W. Olympic Blvd., 9th Fl. Los Angeles, CA 90064-1582 (310) 478-4100 • Fax (310) 479-1422 dshapiro@wrslawyers.com www.wrslawyers.com
CONSTRUCTION DEFECT ANALYSIS BERDING | WEIL LLP Construction Defect Litigation | Community Association Counsel Tyler Berding | Steve Weil | Chad Thomas | Andrea O’Toole Walnut Creek | San Diego | Costa Mesa 2175 N. California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com www.BerdingWeil.com FENTON GRANT MAYFIELD KANEDA & LITT, LLP Construction Defect Litigation & CID Education Charles R. Fendon, Esq. & Joseph Kaneda, Esq. California & Nevada 2030 Main Street, Ste. 550 Irvine, CA 92614 (877) 520-3455 • Fax (949) 435-3801 cfenton@fentongrant.com www.fentongrant.com MCKENZIE RHODY, LLP Construction Defect Analysis Daniel R. Ryan, Esq. Construction Defect Attorneys - Serving All of California 11620 Wilshire Blvd., 9th Fl. Los Angeles, CA 90025 (415) 637-4859 dryan@mrcdlaw.com www.mrcdlaw.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 •IE (800) 403-3332 rachel@constructiondefects.com www.constructiondefects.com THE NAUMANN LAW FIRM, PC Construction Defect Litigation William H. Naumann, Esq. Los Angeles •Orange County • San Diego • Riverside Counties 10200 Willow Creek Road, Ste. 150 San Diego, CA 92131 (844) 492-7474 • Fax (858) 564-9380 elaine@naumannlegal.com www.naumannlegal.com
ELECTION ADMINISTRATION THE INSPECTORS OF ELECTION Election Administration Kurtis Peterson 2794 Loker Ave. W. Suite 104 Carlsbad, CA 92010 (888) 211-5332 info@theinspectorsofelection.com www.theinspectorsofelection.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 • Fax (800) 733-1581 cserrano@reservestudy.com www.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 www.helsing.com
VENDOR COMPLIANCE ASSOCIATION SERVICES NETWORK Vendor Compliance David Jeranko Vendor & Cyber Risk Management 24000 Alicia Pkwy., Ste. 17-442 Mission Viejo, CA 92691 (949) 300-3702 davidj@asn4hoa.com www.asn4hoa.com
2020 CACM
EVENT CALENDAR JUNE 3: Enhance Your Professional Presence-Online Course (Day 1 of 2) 4: Enhance Your Professional Presence-Online Course (Day 2 of 2)
--9: Explaining Financial Statements-Online Course (Day 1 of 3) 16: Explaining Financial Statements-Online Course (Day 2 of 3) 23: Explaining Financial Statements-Online Course (Day 3 of 3)
--10: The Basics of Association Management-Online Course (Day 1 of 8) 11: The Basics of Association Management-Online Course (Day 2 of 8) 17: The Basics of Association Management-Online Course (Day 3 of 8) 19: The Basics of Association Management-Online Course (Day 4 of 8) 24: The Basics of Association Management-Online Course (Day 5 of 8) 25: The Basics of Association Management-Online Course (Day 6 of 8) JULY 1: The Basics of Association Management Online Course (Day 7 of 8) JULY 2: The Basics of Association Management Online Course (Day 8 of 8)
--18: Advanced Insurance Principles-Online Course 19: Foundational Ethics for Community Managers Course, San Diego 19: Advanced Ethics: Leadership & Decision Making Course, San Diego 25: Advanced Ethics: Leadership & Decision Making Course, Inland Empire 30: Foundational Ethics for Community Managers Course, Sacramento 30: Advanced Ethics: Leadership & Decision Making Course, Sacramento
SEPTEMBER 11: CACM Golf Classic Northern California
The Villages Golf & Country Club, San Jose 25: Orange County Fall Forum (Afternoon Networking Happy Hour) 29: Bakersfield Fall Forum (Luncheon) 30: Pomona Fall Forum (Luncheon)
OCTOBER 8-9: High Rise & Large Scale Summits, Northern California 20: Sacramento Fall Forum (Breakfast) 21: East Bay Fall Forum (Luncheon) 22: South Bay Fall Forum (Luncheon) 26: CACM Golf Classic Trick or Tee (Southern California)
Oak Creek Golf Club, Irvine 28: Coachella Valley Fall Forum (Breakfast) 29: San Diego Fall Forum (Luncheon)
DECEMBER 4: Southern California Holiday Party 9: Northern California Holiday Party
Please check the CACM website (www.cacm.org) regularly for the most current information regarding course schedules and events as information changes in response to COVID-19.