QUESTION: Can a board add, change, or make up rules that are not in the CC&Rs? Our board decided that all condos with wood/gas burning fireplaces can ONLY use gas. I bought a condo with a wood fireplace. It was important to me. I do not like that they arbitrarily made this decision without the homeowners' input. In addition, the first offense will cost $1,000 and the second offense $2,000. Can they do this?
ANSWER: If you review your governing documents, you will find language authorizing your association to adopt rules. In addition, you will likely find broad language authorizing it to address health and safety issues. As with all things one might enjoy, fireplaces and stoves are now heavily regulated throughout California. The reasons involve health and safety.
Safety. Wood-burning fireplaces can produce large amounts of soot and creosote which coat the interior of a chimney. The buildup can create dangerous chimney fires. The danger can be avoided with regular cleaning of the chimney but most associations and condo owners seem unsure who is responsible for it and neither wants to pay the bill. Our firm has written legal opinions for many associations interpreting their CC&Rs on this issue. We've amended even more documents to make duties clear.
Pollution. Then there is the pollution problem. In most areas of the country, wood-burning stoves and fireplaces are the largest source of pollution generated by residences. In some areas, they create 80% of airborne particulates during the winter. According to the Environmental Protection Agency (EPA), "The fine particles in smoke...can get deep into the lungs, harming the lungs, blood vessels and heart. People with heart, vascular or lung disease, older adults and children are the most at risk." To address this problem, the EPA issued new regulations in 2015 restricting wood-burning devices.
Most counties in California now regulate or ban wood-burning fireplaces and stoves in all new construction. For example, beginning November 1, 2016, wood-burning devices are banned in all new construction in seven San Francisco Bay Area counties. Nine counties in the San Joaquin Valley not only limit them in new construction, they also require all existing wood stoves be replaced with an EPA certified wood stove when a home is sold.
Reasonable. Is it reasonable for a board to require owners to switch to gas? As provided in Civil Code §4350, to be enforceable rules must:
1. Be in writing.
2. Be within the authority of the board conferred by law or CC&Rs, articles, or bylaws.
3. Not be in conflict with the law or governing documents.
4. Have been adopted, amended, or repealed in good faith.
5. Be reasonable.
I suspect a judge would find that the gas-only rule meets the above criteria since both state and federal regulations already restrict the wood-burning stoves and fireplaces.
RECOMMENDATION: I believe you would have difficulty persuading a judge to overturn the association's rule. You could spend a lot in legal fees fighting the rule and lose.
If you curl up with a glass of wine and a good book, you will hardly notice the difference between a gas fire and wood fire.
You should enjoy the gas flames while you can. This being California, the next round of regulations will probably limit you to an electric image of a fire--the kind you hang on a wall. It creates the illusion of flames without the danger of fire and is entirely pollution free. Even better, you can select the color of flame to suit your mood. I'm told the devices are quite realistic (as long as you have electricity to power them).
JOSHUA MENDELSOHN JOINS
I am pleased to announce that attorney Joshua "Josh" Mendelsohn joined our firm.
State Bar. Josh comes to us with an interesting litigation background. He worked as a trial attorney in the Office of Chief Trial Counsel for the State Bar of California. Josh represented the State Bar in litigation. His responsibilities included investigations of attorney misconduct, drafting and arguing contested motions; deposing witnesses, trial preparation; and conducting trials.
Commercial Litigation. Prior to his work for the State Bar, Josh represented multinational companies and high net worth individuals in business, employment, intellectual property and complex commercial litigation. He handled all stages of litigation from inception through trial and appeal.
Transactional Experience. Josh also has valuable transactional experience. He advised clients about, negotiated and drafted corporate agreements, operation agreements, employee stock option plans, non-compete agreements, non-disclosure agreements, employment contracts, service agreements, purchase and sale agreements, intellectual property issues, real estate contracts, finance, lease and other agreements.
Employment Law. Of particular interest for our larger HOA clients, Josh counseled employers on employment matters, including compliance with California and federal wage and hour, anti-harassment, and mandatory leave laws. He also defended clients in federal and state courts on employment matters.
Education. Joshua earned his Juris Doctorate from the UCLA School of Law where he was active on the Journal of Law and Technology. He is also a graduate of California State University Northridge with a BS in Finance with Honors.
Josh works out of our office in the Inland Empire serving as legal counsel to associations throughout California. We are happy to welcome Josh to the Firm. If your association needs legal counsel, contact us for a proposal.
Self-Managed #1. Many good points made on the self-managed liability question. Another consideration is that Civil Code §5800 would appear to expose the husband and wife to personal liability above their Directors & Officers liability insurance limits. While the minimum for an 18-unit complex is $500,000 to limit personal liability, that limitation is not applicable if a director owns more than two units in the community. It would be wise to ensure that a strong umbrella is in place given the potential for personal exposure above limits of insurance. -Brian Kalmenson, CIRMS, Michael Abdou Insurance Agency
Self-Managed #2. Wow, voting yourself and your wife to the board is certainly a conflict of interest. Along with your suggestion of them stepping down maybe it’s time for them to buy all the units to avoid a costly court battle. -Gary S.
RESPONSE: Or sell most of their units.
Self-Managed #3. I enjoy your weekly update even though I sold my condo four years ago. It makes me remember the old story about a boat owner--he is happy when he buys it and happy again when he sells! Keep up your good messages. -Howard G.
Secretary of State Forms. Regarding the Secretary of State CID information forms, can you work your magic to make this a form that can be submitted online? The Secretary of State continues to require CIDs to file the forms by mail. It's great their form is a pdf form-fill, but associations must still mail in the form(s) with a check. Our recent experience illustrates the division that handles this has some issues. We mailed in the exact forms as the previous time and they returned our form, with a note to complete the required CID 100, which is what their Post-It was attached to (yes, rolling eyes). We mailed it again and they returned with another Post-It stating we needed to check we were a CID, which we had. We finally called and the representative was very helpful and also rolled their eyes at the delay; had us send it to her directly. -Joseph L.
RESPONSE: I will see what I can do. However, dealing with bureaucrats is a lot harder than dealing with legislators.
Printing and Mailing Fees. Our condo complex has 100 units and all but 10% have agreed in writing to receive communications via email. The remaining 10% require information be printed and mailed to them. Can the association impose a fee on those owners who don’t sign up for email to cover the printing and mailings costs? Say $5 per month or $60 per year? -Tony G.
RESPONSE: Unfortunately, no. Associations have an existing obligation to deliver particular documents and disclosures to their members by "First-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service carrier." (Civ. Code §4040(a).) It only allows electronic delivery when the recipient has consented, in writing, to e-delivery.
Email Consent Forms. I am secretary of an HOA with 250 units. A few years ago, we asked our members to fill out and submit email consent forms. It took a while but we were persistent. Now, when a unit changes hands, along with the CC&Rs and other required documents, we provide the disclosures and consent forms and have them signed at the close of escrow. Buyers can refuse email delivery if they wish. We have a handful of members who prefer to receive financial disclosures by US mail but accept newsletters and other communications by email. This works well for us and may work for your readers too. -Judy W.
Adrian J. Adams, Esq.
ADAMS | STIRLING PLC