Legislative Update

BY BRIAN D. MORENO, ESQ. & MEIGAN EVERETT

Here are the latest updates on bills affecting rental restrictions, solar energy systems, lot splitting, discriminatory clauses, and emotional support animals in HOAs.

AB-1584 Rental Restrictions

AB-1584 amended Civil Code Section 4741, which was originally adopted in 2019 and required community associations to amend rental restrictions within the CC&Rs that did not comply with the statute. The bill extended the deadline to complete the amendment to July 1, 2022.

It is important to note that AB-1584 did not extend the obligation to comply with the prohibition on rental restrictions cited in this statute. Since January 1, 2021, associations have been and still are prohibited from enforcing restrictions that conflict with the statute.

With the extension, the Legislature eased compliance by expressly stating that a board of directors may approve the amendment without a membership vote if it follows the new procedure provided.

This includes providing general notice of at least 28 days before the meeting to approve the amendment, sending the text of the amendment and a description of the purpose of the amendment to the membership, allowing members 28 days to comment, reviewing the comments, and adopting the amendment at an open meeting of the board.

In order to utilize this procedure, no other change may be made to the governing documents other than restating the rental restrictions to comply with the statute. If other changes are proposed, a membership vote is required.

Under the existing Davis-Stirling Act, unreasonable restrictions in CC&Rs on constructing ADUs are prohibited. This law expands the prohibition on unreasonable restrictions to any deed, contract, security interest, or other instrument affecting the transfer or sale of any real property. And, in addition to associations being subject to the restriction, an owner cannot agree to restrict his or her property in this manner when transferred to a third party.

AB-1124 Solar Energy Systems

Existing law provides for solar easements, defined as “the right of receiving sunlight across real property of another for any solar energy system.”

This bill expands the definition of “solar energy system” to include stand-alone features adjacent to buildings and allows for them to be on adjacent or contiguous lots.

Solar easements should be made in writing so that the terms and scope of the easements are clearly defined. Otherwise, it should be noted that there may be rights or defenses that could be asserted, including an equitable easement and/or a prescriptive easement, depending on the circumstances. These rights are now extended to freestanding solar systems, such as racks or solar support structures.

In addition, the new law caps the fees charged by municipalities for the installation permits, etc. Any 3+ unit property would be subject to the commercial rates, while 1 and 2 units are subject to residential rates.

SB-9 Lot Splitting

This bill requires municipalities to approve ministerially (aka over-the-counter) lot splitting in single family residential zones to allow for 2 units per lot.

While most CC&Rs contain clauses that prohibit lot splitting, community associations should review their documents to ensure they contain adequate restrictions that would prevent lot splitting and other similar transactions that may be out of character for the community.

Without a proper clause in the CC&Rs, the board would lack the authority to prohibit a lot split. Further, while this bill requires a municipality to approve 2 units over the counter, it does not prohibit them from approving more.

Lot splitting can put a strain on the association’s infrastructure, including utility services such as electrical services, water and sewer lines, and even internet wiring.

Associations may want to consider this impact and transfer financial liability to homeowners that are seeking these types of modifications, including imposing conditions that would require utility service upgrades and other infrastructural upgrades to accommodate the additional usage.

AB-1466 Discriminatory Clauses in CC&Rs

This new law allows anyone to file a request for Restrictive Covenant Modification to remove discriminatory clauses from association CC&Rs. Civil Code Section 4225, effective since January 1, 2014, already required community associations to remove these clauses.

Since many have not, this bill extends the power to others. Whoever files the request for modification has the opportunity to remove the clause in its entirety. The request, along with the revised text, is submitted to the county attorney, who must review it within a three-month period and decide whether to record the modification or not.

It also requires an escrow agent, title company, real estate agent, etc. to notify a buyer when they have knowledge of such a clause within CC&Rs involved in a purchase transaction.

AB-468 Emotional Support Animals

While this bill does not directly impact community associations, it does provide a tool for evaluating requests for accommodation involving a service or emotional support animal.

AB-468 established guidelines for doctors and clinicians, requiring them to be licensed, to establish a relationship with a patient for over 30 days, and to conduct an evaluation for the need for the emotional support animal before writing a letter on the client’s behalf in support of an emotional support animal.

Community associations can require any letter offered with a request for accommodation for an emotional support animal to include license number, a statement that the clinician/doctor – patient relationship has been established for at least 30 days, and that an evaluation was conducted that established the need for the support animal.

Brian D. Moreno, Esq.

Brian D. Moreno, Esq., is an experienced litigator, community association attorney, and has practiced common interest development law since 2003.

Meigan Everett

Meigan Everett joined SwedelsonGottlieb as its client relations director in 2018 after working as a community manager for many years and opening her own property management company in 2006.