IN DISCRIMINATION LAWSUIT
Sometimes a demand for reasonable accommodation is unreasonable.
Large Dogs. Holly Geraci owned a penthouse in a Chicago highrise. She claimed to have a fear of large dogs because she was attacked by a German shepherd as a child and suffered post traumatic stress disorder (PTSD).
Lawsuit Filed. Residents in the highrise had large dogs that accompanied them on the elevators. Geraci demanded the association provide her with an elevator that prohibited large dogs. When the board declined her request, she sued in federal court. At trial, the jury did not believe Geraci's fear of large dogs met the definition of disability and found for the association.
Geraci Appealed. On appeal, Geraci objected to testimony by the association's psychiatrist that contradicted her doctor's diagnosis of PTSD. She also claimed that publishing litigation updates to the membership and holding an open forum about the lawsuit was retaliatory and designed to cause her emotional distress and embarrassment.
Association's Rights. The federal court of appeals disagreed on both points. Geraci had the burden of proving she was handicapped and the association had the right to defend itself by disproving her alleged mental impairment.
In addition, the board had the right to tell members about the litigation. No federal law prevents members from knowing why their association is bearing legal costs. It should be expected that members would want to know the details of the lawsuit. The court noted that sending litigation updates and holding open forums to update members on litigation are reasonable measures.
OBSERVATION: Force all other residents to keep their dogs off the elevators? Sue the association and demand the board not tell members? Object to the association defending itself in court? The case injects some common sense into growing demands related to claims of disability. Read Geraci v. Union Square Condominium Assn.
QUESTION: I'm curious about the Davis-Stirling Act. Why are there few, if any provisions with penalties when a board does not comply? Seems as if there are no checks and balances.
ANSWER: Good question and given the current political discourse, it allows for a brief reminder on our government’s system of checks and balances.
If Men Were Angels. The idea of checks and balances is to ensure that no one branch of government becomes too powerful. As James Madison wrote in the Federalist Papers No. 51 arguing for the adoption of the system in the Constitution, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
While some disputes in homeowner associations seem like arguments over how many angels can dance on the head of a pin, the law does provide checks on potential abuses by boards of homeowner associations. (And if only angels served on boards, there would be no need for checks on abuses or HOA attorneys for that matter).
Accountability. Although a system of checks and balances does not perfectly square in the homeowner association context as there are not separate branches of governance within such communities, the idea of political accountability built into the system is embedded in homeowner associations.
For example, the Davis-Stirling Act requires election rules that, among other things, allows members access to common area to advocate points of view not endorsed by the board and access to association media under certain circumstances. (Civ. Code §5105.)
There is also the Open Meeting Act under the Davis-Stirling Act (Civ. Code §4900–4955) for procedures on how boards are to conduct their meetings with the intent of transparency and accountability.
Under California’s Corporations Code (§7110 et seq.), there are provisions on director qualifications (now under assault by CCHAL and Sen. Wieckowski--see below), removing unqualified directors, conflicts of interest, among others checks on a board’s conduct. There is also a board’s fiduciary duty to act in the best interest of the members. And, of course, boards can be recalled.
So while some believe “power tends to corrupt, and absolute power corrupts absolutely,” rest assured the ideals of the Founding Fathers can be found in the laws that govern homeowner association boards.
Thank you to partner Cang Le, head of our firm's litigation department, for answering this question.
NANCY I. SIDORUK
I am pleased to announce that senior attorney Nancy Sidoruk; joined our firm.
Nancy is a seasoned community association attorney who serves as general counsel to residential, mixed-use, and commercial common interest developments.
Nancy is actively involved in educating association managers and volunteer leaders, and addressing community association legislative issues. She served as President of the Community Associations Institute's Inland Empire chapter; was a delegate to the California Legislative Action Committee and served on its Executive Committee. Known for her focus on education, Nancy is a frequent author and speaker and recipient of many industry awards.
Nancy earned her Bachelor of Arts in Political Science from UC Berkeley, earned a Masters in Business Administration from the University of Redlands, and a Juris Doctorate from the University of La Verne College of Law where she was law review editor-in-chief, moot court finalist and served a judicial externship with the California Court of Appeal.
We are pleased to have such a talented and experienced attorney join our firm. If your association needs legal services, contact us for a proposal.
IN NORTHERN CALIFORNIA
We are looking for experienced HOA attorneys for clients in the South Bay.
Candidates should have at least five years' experience working with community associations.
We offer growth opportunities and excellent benefits. If you are interested, contact me at 800-464-2817 or by email. -Adrian Adams
I received ~600 emails opposing SB 1265 and 4 in favor. Below are a few from readers who disagreed with me or had questions. -Adrian
Train Wreck #1. Your article about SB 1265 is in error. You said it lets felons on the board. I read the bill and it specifically excludes felons from serving on the board. -M.B.
RESPONSE: If you take a closer look at the bill and my article, you will notice I referenced sex offender felons and the bill talks about financial felons.
People Behind the Bill. The bill is sponsored by the Center for California Homeowner Association Law (CCHAL), an organization in Sacramento that seems particularly hostile to community associations. Over the years, they sponsored a lot of harmful legislation and this is another piece.
How to Sue HOAs. In addition to bad legislation, CCHAL holds classes teaching lawyers and homeowners how to sue associations. I attended one because I had a hard time believing an organization would promote litigation over reconciliation. Unfortunately, they really are teaching people how to sue associations. For some reason, Sen. Wieckowski has associated himself with this group.
Negating Rights. The bill put forward by CCHAL and Sen. Wieckowski strips consumers (homeowners) of their right to adopt reasonable qualifications for board members. In their original bill, they forced homeowners to accept all felons as board members.
Partial Retreat. Their ill-conceived bill was so reckless that CCHAL and Sen. Wieckowski were forced to revise it. They made a partial retreat by amending the bill so homeowners could exclude financial felons. You, as consumers, would still be required to accept all other felons, including those who commit violent and/or sexual crimes. Thus, if directors discover a felon pedophile was elected to the board, they could not vacate the seat. Once elected, that director would then have access to the association's records.
Destructive Bill. It is perplexing that CCHAL and Sen. Wieckowski think they have the right to impose their will on 9 million consumers, stripping them of their right to exclude felons and delinquents from serving on homeowner boards.
Legal Analysis. Curt Sproul, well respected co-author of Advising California Common Interest Communities published by the Continuing Education of the Bar (CEB), did an excellent analysis of the flawed legislation which he sent to the Assembly Housing Committee. His letter urging opposition to SB 1265 is worth a read.
Train Wreck #2. I think there is misinformation in your newsletter that should be corrected. You state “For some unfathomable reason, Sen. Wiechowski believes owners not in good standing should serve on association boards of directors.” I’ve read and re-read SB1265 and it certainly appears to specifically exclude members who have not paid their assessments. -Bruce U.
RESPONSE: CCHAL and Sen. Wieckowski made a concession on assessments but only as to regular assessments. An owner can refuse to pay special assessments, be in violation of architectural standards, have multiple unpaid fines, be suing the association, and still be on the board if CCHAL has its way.
With low turnout and cumulative voting, a problem owner's friends can put him on the board. Someone who is in violation of the CC&Rs, refusing to pay a special assessment and suing the association creates significant legal challenges for the association. Such individuals have major conflicts of interest. Putting them on the board is not in the membership's best interest.
Train Wreck #3. Your newsletter mentioned privacy issues. What do director qualifications have to do with privacy? -Nancy L.
RESPONSE: In addition to giving felons, delinquents and scofflaws access to association records as board members, CCHAL and Sen. Wieckowski decided to amend section 5200 of the Civil Code to include email addresses in membership lists. If you ask the association to email notices to you, your email address gets added to the membership list, which is then accessible by all your neighbors.
An email blast from a homeowner to the membership means your email address can make its way to unexpected places and into the hands of people who are not members of the association. Giving out your email address should be your decision, not Sen. Wieckowski's.
RECOMMENDATION: The bill is a train wreck. There is nothing redeeming in it. CCHAL and Sen. Wieckowski are taking away your rights as homeowners. As consumers, you currently have the right to set reasonable standards for who serves on your homeowner board. They are taking that away from you.
If this bill passes, CCHAL and Sen. Wieckowski will be forcing you to allow felons, delinquents, litigants, and members not in good standing into positions of authority over you and giving them access to homeowner records. This bill needs to be defeated.
Anyone who has not yet sent an email opposing this dreadful legislation should do so now. Talk to your friends and neighbors and get them to send emails as well.
Please email Chairman David Chiu urging his Committee to "Vote No" on SB 1265. Send your emails to: [email protected]. Our office will print and deliver them to the committee.
Book Clubs. Regarding your Bible study ban story, the legislature passed SB 407 last year which allows political gatherings. Does it apply to Bible studies? -Mike S.
ANSWER: Maybe. The relevant provision in the bill (now Civ. Code §4515), states that associations "may not prohibit a member or resident... [from] peacefully assembling... for purposes relating to common interest development living..."
Bible studies are generally peaceful and usually focus on how one should live. Will a court interpret this to fall under "common interest development living"? I don't know. What is clear, though, is prohibiting a book club because it focuses on religious text is discriminatory in violation of the Unruh Act and FEHA.