Sukkahs in Common Areas
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  California's Leader in Community Association Law August 19, 2018
SUKKAHS IN
THE COMMON AREAS
 

QUESTION: Can someone build a sukkah in the common areas?

ANSWER: Before answering, I should describe a sukkah for readers.

Sukkah Defined. A sukkah is a hut used by religious Jews to symbolize the temporary dwellings Israelites lived in during their forty years of wandering in the desert before reaching the promised land. Sukkahs are used during the week-long holiday of Sukkot (the Feast of Tabernacles or Festival of Booths) for prayer, reading the Torah, taking meals, and sleeping.

Common Area Restrictions. Since most CC&Rs prohibit temporary structures, alterations to the common areas, and nuisances, a sukkah would violate the CC&Rs. Constitutional guarantees of religious freedoms do not override CC&R restrictions--the guarantees protect against governmental interference not private restrictions. Accordingly, there is no constitutional right to build sukkahs in the common areas.

Exclusive Use Common Area. What about balconies and patios? Under the U.S. Fair Housing Act, the California Fair Employment and Housing Act, and the Unruh Civil Rights Act, associations cannot discriminate in housing based on one’s religion. It is very likely associations would be required to reasonably accommodate a request to temporarily erect sukkahs on exclusive use balconies and patios.

Case Law. There are no California cases on this issue but there are two out of New York. Even though out-of-state cases have no authority in California courts, they can be instructive. Both cases involved an Orthodox Jew, Robert Greenberg, who sued his condominium association over his sukkah.

In the first case, Greenberg built a sukkah in the common areas. In the litigation that followed, the court sided with the association. It found that a sukkah in the common areas violated the CC&Rs. The court commented that Greenberg could satisfy his religious obligations by using a sukkah erected by friends or relatives.

Eight years later, Greenberg erected a sukkah on his balcony. The association again intervened and litigation again followed. This time, the court sided with Greenberg because his sukkah was on exclusive use common area.
(Greenberg v. Parkridge.)

RECOMMENDATION: This year, Sukkot is celebrated from sunset Sunday, September 23 to sunset Sunday, September 30. Boards should allow Jewish families to erect sukkahs on their exclusive use common area balconies and patios. Associations can regulate sukkahs by limiting their construction to the start of the holiday and require their removal the day after the holiday ends. Boards can also require they be constructed in such a manner as to not damage the common areas.

Thank you to my partner Jasmine Hale for researching this article.

IDR, WHO’S IN
WHO’S OUT?

QUESTION: Can members bring witnesses or any other support persons to an IDR "meet and confer" with the board?

ANSWER: Owners and associations are each allowed to bring one person to an internal dispute resolution (IDR) meeting. That means witnesses (plural) and other people cannot attend--only one person of the owner's choosing.

IDR Defined. The Davis-Stirling Act establishes a default procedure where owners and board members can informally resolve problems. (Civ. Code §5910.) If an owner makes the request, the board designates a director to attend the meeting. If the board requests IDR, an owner is not required to attend. If the parties enter into a written agreement during IDR, it can bind the parties so long as the designated board member has authority or it is later ratified by the board.

Lawyer Can Attend. What started as a sensible approach to getting owners and boards together to solve problems has, thanks to AB 1738, morphed into a more formal and sometimes adversarial undertaking. The bill, which took effect January 1, 2015 authorized each side to bring their lawyer to IDR. That means an owner can bring a lawyer, or a witness, or a support person. The owner has to decide which one of the three would be most useful in the IDR meeting.

RECOMMENDATION: Associations should adopt a clear IDR policy which describes how owners can best identify their issues and proposed solutions and informs owners the association is represented by counsel so they don’t bring their attorney unannounced. Doing so eliminates surprises and enhances the potential for a productive meeting to resolve problems.

Another thank you to Jasmine Hale, for answering this question.
 
 

Kudos?? I get these updates monthly. Some are more interesting than others. -Barbara W.

RESPONSE: That's odd; my assistant assured me they were all brilliant.

*****
Contaminated water #1. In your article on the black water leak, the management company did their job, and this one director wants to challenge their actions and refuse to pay the bill? I don’t get why he fails to understand the association's duties in an emergency. It seems like this director does not understand his own basic duties. -Tony V.

RESPONSE: The association, through its board of directors, has a duty to immediately clean-up a sewage spill affecting common areas (including common areas surrounding units). It also has a duty to pay the company that performed the work, even if the manager did not seek bids or get prior approval. The board should thank the manager for moving quickly to mitigate the damage. His initiative saved the association from a more costly clean-up and possible lawsuit.

Contaminated water #2. Wow!!! Black water clean-up obviously didn’t affect that director's unit. Otherwise, his would have been first on the list to be cleaned up! Too bad there is always one board member who should not be serving on a board. -Steven C.

RESPONSE: Maybe no one sat him down and explained his duties as a director. Some directors have the mistaken belief that their primary duty is to not spend money. Their primary duty is maintaining the common areas. There is an apt British saying about being penny wise and pound foolish. (The pound referred to is British currency.)

Contaminated Water #3. In general, I agree with your thoughts on what the management company did. However, doesn't the manager have the president's phone number? I would hope he would contact that person (or another board members if not the president), to explain the severity of the problem and then contact a vendor. -Bob F.

RESPONSE: Yes, managers should immediately notify their boards of any common area floods and their actions to mitigate damage.

 
*****
SB 1265 #1. Love that picture...VERY funny train wreck. -Ted A.

RESPONSE: The wreck occurred in Paris in 1895. Because the engineer was running late, he sped his locomotive into the station to make up for lost time. He had 131 passengers on board when the brakes either failed or were applied too late.

The train traveled 100 feet through the station, broke through a cement wall and plunged 33 feet to the street below. The only fatality was a woman on the street. The engineer was fined 50 francs (~8 dollars).

SB 1265 #2. I support SB 1265; it's about time we get rid of criminals destroying our lives and our life investments and peace of mind. -Heidi P.

RESPONSE: Your comments are counterintuitive. Do you mean replace existing board members with convicted felons, delinquents and litigants? How does that help you? SB 1265 takes away your right to regulate who sits on your board.

I encourage everyone to immediately email their Senator to "Vote No on SB 1265" by clicking here: https://caiclac.com/current-campaigns/. The train wreck of a bill will soon be up for a vote in the senate and needs to be stopped.

 
*****
Donations & Fundraisers. Contributions to an association would be taxable income. HOAs are supposed to be non-profits, right? -Hank J.

RESPONSE: Yes, contributions and fund raisers could be taxable. An association's CPA/tax preparer will have to decide if the monies are revenue or contributions to capital.

 
*****
Recording Board Meetings. On your website, under "Recording Unruly Meetings" it says that "Because board meetings are public forums, the board does not need the permission of attendees to videotape them." However in another page of your website, it says: RECORDING MEETINGS Neither individual board members nor attendees at a board meeting have the "right" to electronically record board meetings. Open Meeting Act. Association meetings are not public gatherings."

In one place it says they are public and in another place it says they are not public. So which is it? I'm confused. We have an association member that insists on audio-recording our meetings. -Bob G.

RESPONSE: It is a bit confusing. Board meetings are not public meetings in the sense that the general public can attend them. They are, however, "public meetings" for members.

Because board meetings are the board's meetings, boards can establish rules for the conduct of their meetings. That means they can disallow members from recording their meetings. In the alternative, boards can choose to record and/or broadcast their meetings. Because board meetings are considered public forums within the association, the board does not need the permission of attendees if it decides to record/broadcast meetings.

The reverse is not true. Attendees cannot record the meetings without the board's permission. Attendees can observe the meeting and can address the board during open forum but must follow rules established by the board--no disruptions of the meeting, no recordings, etc. If the board were to allow members to record meetings, permission would not be needed from other attendees since the meetings are deemed public forums within the association.

Just as judges have discretion to allow or not allow recording in their court rooms, boards have the same discretion. Bottom line: If your board adopts a policy of not recording meetings, attendees must put away their cell phones and any other recording devices they might have.

Adrian J. Adams, Esq.
 
Boards should contact us for friendly, professional advice.

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

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Reprinted from
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Hon. Lawrence W. Stirling, Senior Partner ADAMS|STIRLING
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