Lions, Tigers & Bears

Serving California's Community Associations

August 15, 2010

LIONS, TIGERS & BEARS

QUESTION: Our association has frequent encounters with packs of coyotes, roaming black bears and occasional mountain lions sleeping on decks. Most owners get a thrill out of seeing the bears or mountain lions, but an occasional owner wants the wild animals removed and I don’t mean just relocated. Does an association have any liability because of the wild animals?

ANSWER: Frequent encounters with wild animals is almost as scary as frequent encounters with lawyers.

Normally Non-Aggressive. Most wild animals naturally fear humans and keep their distance. Problems arise when animals have access to food and garbage left out by homeowners. They develop an appetite for easy pickings and keep coming back for more. When that happens, they lose their natural fear of humans and become aggressive. This is especially true with bears, which is why feeding them is illegal with penalties of fines and jail time.

From your question, it doesn't sound like the animals are aggressive. Instead, you have a handful of owners who don't like them. I've run into the same situation with equestrian associations struggling with owners who hate horses. Makes you wonder why they bought into the development in the first place. In your case, when owners buy a house in the mountains, it comes with wild animals. It's a package deal.

Relocate the Animals? According to California's Department of Fish and Game, moving mountain lions is not an option because it causes deadly conflicts with other mountain lions in the relocation area. When it comes to bears, you can find the State's official policy on their website. They may refuse to relocate bears as well. When it comes to coyotes, they play an important role in keeping rodent populations under control. Unfortunately, they love to supplement their diet with pets. According to Fish & Game, "Relocating a problem coyote is not an option because it only moves the problem to someone else’s neighborhood."

Kill the Animals? California will allow the killing of wild animals that threaten people. Also, "Those that prey on pets or livestock can be killed by a property owner after the required depredation permit is secured." Killing endangered animals that eat pets is really not a good option. The best way to minimize problems is to (i) never leave small children or pets outside unattended, (ii) keep garbage in tamper-proof cans, and (iii) trap and relocate owners who feed wild animals.

Stop the Animals? If the association takes steps to protect the membership by installing fences or some other barriers to keep wild animals away from owners, the association will be assuming a duty it does not have. With that comes potential liability. Here is the argument you will hear in court: "The board undertook the duty to keep my clients safe from wild animals; my clients relied on the association's safety measures; because of the board's negligence those measures failed and my clients lost their only child as a result. Their child can never be replaced but piles of money can help lessen the pain." Or something to that effect.

It's like the person driving by a car wreck. If he keeps on driving, he has no liability. If he stops and helps the injured victim, he could be sued if he does not exercise a certain level of care. As a result, the association is better off limiting their actions to warning residents to protect themselves. There are good resources on the internet about dangerous wildlife for residents to read.

Rules & Regulations. The association could also adopt rules and regulations regarding garbage bins and feeding animals. Unfortunately, that may also create potential liability. If a board adopts rules, it has a duty to enforce them. For example, if Ms. Jones feeds the big kitty on her deck and the board fails or refuses to fine her because she is elderly and it's the only pleasure she gets in life, you have a potential problem. If the mountain lion mauls her neighbor's daughter, the association will likely be sued. Plaintiff's attorney will argue to the jury that "Because the board failed to enforce its rule against feeding wild animals, a mountain lion became aggressive. That lion then attacked my once stunningly gorgeous client. The severe, disfiguring injuries forever destroyed her budding career as an actress/model . . ."

Bottom Line. Let's say the board does everything right and a bear mauls a birthday party of toddlers, the association will get sued anyway. That's because plaintiffs sue everyone in sight and let the courts sort out the responsible parties. As an association, you want no discernable liability so you can get out of the action as quickly as possible.

RECOMMENDATION: Plaintiffs' lawyers will look for every way possible to read into the CC&Rs some sort of duty by the association to protect the health, safety and welfare of its members. To minimize potential liability, associations should amend their CC&Rs to specifically relieve themselves from any duty or liability related to wild animals and obligating owners to take affirmative steps to protect themselves from wild animals. In addition, boards should regularly warn residents in the association's newsletters not to feed wild animals, use tamper-proof trash bins, etc. The reminder should make it clear the association is NOT responsible for keeping them safe and residents should call the game warden or an animal control expert because dealing with wild animals is outside the association's authority.

Thank you to attorneys Curt Sproul and Gregory Maxim from the law firm of Sproul Trost for their input on this interesting question.

ELECTRIC VEHICLES

Charging Station.Why not do what a few HOAs have done and install their own EV charging systems and then assign that space to the EV homeowner who then is charged for the electricity directly by the power company? The EV owner would of course have to pay a small monthly fee to the HOA to cover the cost of the meter installation. Normal cost to install an EV charging station depends upon the vehicle and may run as much as $7,000.00. -A.C.

Fixed Fee. Rather than get involved in another installation for charging electric cars why not arrive at an acceptable figure per month for the cars as specified in their test literature. For example a Chevy Volt is advertised to require about $1.50 worth of power for a forty mile drive. If the charge is done during the night the rate will drop to about a dollar. -Eric D.

Electric Company Info. The association might want to install charging stations for use by all EV owners, either on an exclusive license or shared basis depending on demand. SCE has a good website that discusses many of the issues surrounding EVs. In addition, there are many online sources for submeters. -Jim S.

MANAGEMENT COMPANIES

Management Costs. Who works for $10 a door? -MH

RESPONSE: I not sure any companies work for $10 a door any more. Also, management costs vary widely depending on the level of service sought by the board and the number of units in the development. The larger the association, the lower the cost per door as economies of scale factor in. A more realistic charge for full service is probably in the range of $20 to $40 per door.

Sincerely yours,

Adrian J. Adams, Esq.
Adams Kessler PLC