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  California's Leader in Community Association Law February 18, 2018
HOA
BEEKEEPING

QUESTION. Do you have information on guidelines for beekeeping in homeowner associations? The board decided not to allow apiaries, deeming them a nuisance, but is now revisiting their decision.

RESPONSE: Honey bees are wonderful creatures. They are the world's most important pollinator of food crops. One-third of the food we consume relies on bee pollination.

Need for Apiaries. Tragically, bee colonies are collapsing at an alarming rate due to pesticides, parasites, and disease. To offset that, there is a push to place more bee hives ("apiaries") in both rural and urban environments.

In HOAs. Because
homeowner associations make up such a large portion of California's housing market (~50,000 associations with over 9 million residents), they are being asked to place apiaries in their developments.

Bee Stings. There is a lot of resistance to apiaries because most people are frightened by bees. They are afraid of being stung. In reality, honey bees are not inclined to sting people. Unlike other stinging insects that sting and fly away, honey bees die after stinging. Their sting, while painful, is relatively harmless. In most, the swelling and pain go away within a few hours. However, for those with sting allergies, it can trigger a reaction that is potentially deadly. Thus, the difficulty in establishing apiaries in urban developments — people fear being stung, and associations fear potential liability.

Insurance. Because of potential claims, it is important that associations entering into arrangements with beekeepers have legal counsel review the company's insurance. Not all insurance is created equal. I recently reviewed a policy for an association and found so many exclusions it rendered the insurance meaningless. Proper insurance can minimize an association's potential exposure.

RECOMMENDATION: When it comes to apiaries, urban developments are more problematic than rural settings. The higher density of people and structures put bees in closer contact with people. Depending on the insurance, boards may wish to consider an apiary in their development.

 
PORTABLE
CAR CHARGER

QUESTION: The Civil Code applies to installing an electric charging station. It does not seem to explicitly prohibit the use of portable 120V electric vehicle chargers. Is that correct?

RESPONSE: Owners can use portable chargers (a modified extension cord) to charge their vehicles. What they can't do is plug them into a common area outlet. Doing so means your neighbors are paying to charge your car's batteries.

With proper approvals, you can install a dedicated outlet in your parking space to charge your vehicle at your expense rather than the association's. The cost will depend on where the electrical panels are located and what arrangements you make with the association for tracking your electricity usage.

An alternative to installing a charging station is to pay the association a flat rate to plug into a common area outlet. For more information, see "Electric Charging Stations."

 
CHANGES IN
MOBILE HOME RESIDENCY LAW

Effective January 1, 2018, changes in the mobile home residency law clarify the distinction between guests and companions, and change the verification process for live-in caregivers.

Additional Occupant. Senior mobile home residents can now have a live-in companion without first requiring a Medical Needs Plan or without being charged additional fees. A resident can designate one person as a companion per calendar year, except in the case of the companion's death.

Live-in Care. Previously, a live-in caregiver over 18 could live in the mobile home without a park fee, provided it was pursuant to a physician's treatment plan submitted to the park.
To avoid an invasion of medical privacy, the legislature changed the requirement from submission of a treatment plan to submission of a written confirmation of the need for a caregiver. Moreover, the park can ask for confirmation only if the need is not readily apparent.

Rules Violations. The change in the law also clarifies the companion or caregiver does not have tenancy rights and any violations of park rules by the person is deemed a violation by the owner. It makes clear that these provisions do not create a duty by park management to manage, supervise, or provide care for a guest, companion, or caregiver during that person’s stay in the park. (See
Civil Code §798.34.)

RECOMMENDATION: Mobile home park associations should update their rules to comply with these changes in the law.

Thank you to attorney Jason Savlov for this article. Those needing assistance updating their rules should contact us.
 

Incarcerated Director. Can the board declare the seat vacant if the director who killed someone in a bar fight is convicted? -James L.

RESPONSE: Yes, Corporations Code §7221(a) allows a board to declare vacant the seat of a director who is convicted of a felony, regardless of whether it is part of the association's governing documents. If the board is not inclined to suffer the optics of a director on trial for murder, obtaining a resignation may be prudent.
 
*****

Amending Docs. Our association was faced with the same situation of a super majority being necessary to amend our outdated CC&Rs. What we did was amend just the section on amendments so future amendments no longer required a super majority, only a simple majority. Once that was passed and recorded, we moved forward to amend the entire document. -Rick S.

RESPONSE: That same approach has been successful with associations we work with.

 
*****

Earthquake Insurance. Our HOA master policy does not cover earthquake damage, but some members want that protection. Your newsletter mentions that condominium owners cannot purchase insurance on the structure since it is owned in common with other members of the association.

Our community looks exactly like a condo community but is actually a planned unit development. We each own the land on which our unit sits, as well as the entire structure. The association provides a master insurance policy that covers fire damage but not earthquake. Most of us have a renter's policy or our own condo unit policy, and some of us have our own earthquake policies. -David P.


RESPONSE: I checked with Michael Berg of Berg Insurance about your situation. Put on your seat belt; his explanation illustrates the need for insurance professionals who specialize in community associations.

Mr. Berg responded that many communities are constructed with the characteristics of single-family homes but are insured like condominiums. The key is to determine what the CC&Rs require the association to insure.

Governing Documents. If the HOA is required to insure structural elements of buildings and maybe property attached to the interior of the units, the agent writes a condominium-style policy, even if the buildings were built like townhomes, or brownstones, or row houses, or completely detached structures.

If the association is insuring the structure, the owner should purchase an HO-6 condominium owner’s policy. It is quite common, however, for owners to purchase a policy designed for a single-family home. Oftentimes, real estate agents, lenders, and personal lines insurance professionals review the type of product being sold rather than consult with the insurance in place for a community.

Special Form Policy. If the association is required to insure the residential structures for typical property perils (once known as “all risk” coverage but now called “special form”), the policy will exclude earthquake damage. Without an additional stipulation in the governing documents, there could be some confusion on which party should insure the structure for earthquake loss.

If the association insures the structure for typical perils, then the cost to repair earthquake damage would be assessed to the membership (an earthquake loss assessment). Each member should have purchased an HO-6 policy and could then purchase a companion policy providing earthquake loss assessment insurance.

Loss Assessment Coverage. The important note on earthquake loss assessment insurance is that it is only available as a companion to an HO-6 policy and only applies to assessments to repair residential property. So, if an owner purchased a special form policy that protects his property as if it were a single-family home, he cannot purchase a companion policy that provides him with loss assessment insurance. That is to say, an owner can’t buy single-family home insurance and then an HO-6 earthquake companion policy.

Thank you to Michael Berg (MBA, CIRMS, CMCA) owner of the Berg Insurance Agency.
 
*****

Kudos #1. Today’s newsletter is outstanding, Adrian. Several critical subjects, especially cumulative voting. -Marilyn B.

Kudos #2. I so enjoy reading your newsletters. -Judy B.

Kudos #3. I enjoy the Davis-Stirling newsletter, and I very much appreciate the time it takes to create them and the great information/education they provide. Keep up the excellent, excellent work! -Elise H.

 
*****

Common Area Keys. A homeowner (who spends her nights on your website) told us utility rooms are common areas so she believes she has the right to a key to the electrical room. Can we refuse her request?

RESPONSE: I am flattered she spends her nights on my website--it's a clear sign of intelligence.

Although owners have an undivided ownership interest in the common areas, it does not give them unfettered access to them. Associations are created to manage the common areas. Members elect a board of directors to handle that duty. That means boards can restrict access to utility closets, roofs, elevator equipment rooms, etc. Most do so for safety and security reasons. Boards can also regulate the time and manner for member access to pools, clubhouses, tennis courts and other association amenities.

Adrian J. Adams, Esq.
 
Boards can contact us for friendly and professional legal advice.

Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS | STIRLING PLC

HARASSMENT
POLICY

To comply with new federal regulations and reduce legal exposure, boards should adopt anti-harassment, neighbor dispute policies.
See Policy Description.

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