Additional Legislation
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  California's Leader in Community Association Law November 10, 2019
ADDITIONAL
LEGISLATION

Following are a few more pieces of legislation affecting California's associations.

Unlike the election bill pushed by the Center for California Homeowner Association Law (CCHAL), the following bills actually do some good. -Adrian
 
CONSTRUCTION DEFECT
CLAIMS MADE EASIER
 
To discourage construction defect claims against developers, many insert language in CC&Rs for new developments that require approval of the membership before any legal action can be filed. They hope that apathy and fear of litigation will block any such authorization.

Governor Newsom signed Senate Bill 326 giving boards of directors the authority to pursue construction defect claims without first going to the membership. In addition, any provisions in governing documents which restrict the board’s authority to retain legal counsel or incur expenses pursuing a construction defect claim are now unenforceable.

 
DISCRIMINATION AGAINST
MILITARY STATUS

Senate Bill 222 makes housing discrimination on the basis of veteran or military status against public policy. Associations must add to the first page of their CC&Rs the following stamp in at least 14-point boldface type:
“If this document contains any restriction based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, veteran or military status, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status.”
FAMILY
DAYCARE
 
Senate Bill 234 extends the protection that is already applicable to small family daycare homes (8 children) to large family daycare homes (14 children).
 
CC&Rs cannot restrict the use or occupancy of property as a family daycare home. This applies to condominiums and townhouses as well as single family detached homes.
 
A family daycare home is a facility that regularly provides care, protection, and supervision for 14 or fewer children, in the provider’s own home, for periods of less than 24 hours per day, while the parents or guardians are away.
 
HIRING LAWYERS

We are looking for experienced attorneys to join ADAMS|STIRLING.

Candidates should have at least five years' experience as an attorney.

We offer growth opportunities and excellent benefits. Contact me at 800-464-2817 or by email.
 
7th ANNUAL
ABCs of HOAs
 
Adrian Adams will be speaking at an annual educational event open to all board members.
 
In addition to year-end legal updates by Adrian, Neda Nehouray will cover boards' management responsibilities and procedures, and Dr. Lori Baker-Schena will discuss ways for boards to strengthen leadership skills.
 
This free event by HOA Organizers will be held:
Date: Saturday, December 7, 2019
Time: 11 a.m. to 3:30 p.m.
Location: 11301 W. Olympic Blvd, Los Angeles
Kudos #1. Thank you for the hours spent trying to make clear the provisions in SB 323, which seem to be a step backwards for HOAs. These new laws add to the already high burden of our volunteers. -Netti J.

Kudos #2. Thank you so much! I just signed up for both electronic publications! I appreciate your help and support and will encourage my other board members to subscribe as well! -Renee J.

RESPONSE: We need to get the word out to as many homeowners as possible so we can mount letter writing campaigns and phone calls when Marjorie Murray floats her next bill. Encourage board members and owners to sign-up for our newsletter by entering their email address here.

 
 
ADU #1. I can’t believe they applied ADUs to associations! Our complex is going to look like a favela if everybody starts doing this. -Scott S.

RESPONSE: I had to look up favela. It means a Brazilian shack or shanty town; a slum. Assembly Bill 670 will clearly increase the density in associations. Let's hope it does not turn them into favelas.


ADU #2. Single family residential home tracts could jump 50% in population density. Where do the cars go? Argggggh. Wait until residents want to convert their parking spaces into residences. -Rick

RESPONSE: Let's not give legislators any ideas.


ADU #3. Could someone could put an ADU on their patio? -Dorethia M.

RESPONSE: Yes, that's possible. We will learn more once local agencies release their guidelines in January.

ADU #4. When I bought a home in my association I agreed to the CC&Rs and rules in place at that time. If the state changes those rules doesn’t that invalidate the contractual obligations that I have to follow them? I didn’t agree to these changed rules at the time of purchase. I never would have bought my house under these rules. We are no longer in charge of our own investments. -Gary S.

RESPONSE: Census data shows that more people are moving out of California than are moving in. With ADUs and SB 323, more people may be hitting the exits.

ADU #5. Can associations impose dues on ADUs? Planned communities should be able to charge renters the same association fee as all other dwellings. Even though dues are typically per lot, this needs to change and HOA dues should be charged per dwelling. -Steve C.

RESPONSE: I understand the need to address the increased burden ADUs will place on associations but you can't charge renters assessments. Your CC&Rs allow you to charge per lot, not per dwelling. However, you might be able to charge lot owners with ADUs an impact fee. (Watts v. Oak Shores.) You should run it by your association's legal counsel.

ADU #6. How will mobilehome and manufactured home communities be affected? Will they be required to allow ADU and JADU construction? -Marie W.

RESPONSE: No exception was made for mobile/manufactured home parks. If it's legally structured as a planned development and there is room on the lot for an ADU, it will apply.

ADU #7. Do age restrictions for 55+ developments apply to residents of ADUs? -John M.

RESPONSE: The legislation does not affect age restrictions. Your 55+ restrictions can be applied to residents of ADUs.

ADU #8. We have eight condos but we think they are townhouses. Is it possible for us to change our condos to townhouses? -Yvonne G.

RESPONSE: Townhouses are a form of construction and don't have anything to do with the legal structure of your association. Townhouses can be condominiums or single-family homes. You have to look to your CC&Rs to see how the developer structured ownership.

ADU #9. Can ADU guidelines be written into our operations procedures or must they be adapted into our CC&Rs? -John R.

RESPONSE: You don't need to amend your CC&Rs, guidelines can be added to your rules and regulations.

ADU #10. Our small HOA consists of 24 townhome style units (units share common side walls) with garages. We pay property taxes on our improvement (our individual units) and pay 1/24 of the taxes on the common area. Does the ADU law apply to us? -Debra G.

RESPONSE: You will need to look at your CC&Rs to see if you're legally structured as condominiums or a planned development. If you are condominiums, you're safe. If you are a planned development...

ADU #11. We have one homeowner who created an illegal JADU earlier this year. Will she still be required to provide the HOA with a copy of the lease showing an initial term of at least one year, tenant’s name(s) and contact information, etc. -Judy W.

RESPONSE: Yes, rental requirements such as you describe will apply to ADUs the same as other rentals. Owners will need to provide information about the renter and a copy of the lease to show that lease terms are longer than 30 days.

ADU #12. The real nightmare is homes & spaces that could be homes remaining empty for months until the fortunate owner spends some time enjoying their excessive home ownership. People need homes. People that have extra space need to realize their responsibility to the rest of humanity. -Trisha A.

RESPONSE: There are solutions other than ADUs imposed on associations. It's unfortunate the legislature didn't explore them.

ADU #13. What is an ARC document? I know bylaws, CC&Rs, and Rules and Regs. We are a small self-managed HOA. -Bob S.

RESPONSE: ARC stands for Architectural Review Committee. Some associations include architectural guidelines in their rules and regulations. Others, usually large associations, have a separate document for architectural guidelines.

ADU #14. Our CC&Rs state one residence per lot. Can we require that the primary residence be built before any ADU can be authorized? -Pam H.

RESPONSE: Probably not. The bill defined an ADU as an attached or detached residential dwelling unit located on a lot with a proposed or existing primary residence. It appears the owner of an empty lot can build a rental ADU on his/her lot without first building a primary residence.

 
*****
Elevated Structure Inspections. Does the inspection of balconies and other elevated structures apply to planned developments? -L.B.
 
RESPONSE: No, it only applies to condominiums.
 
*****
Nightmare Bill #1. In last week's newsletter, you wrote that term limits are no longer valid. Is there anything we can do to reinstate them?

RESPONSE: A strict reading of the statute knocks out term limits. Somebody needs to talk to Senator Wieckowski.


Marjorie Murray's Center for California Homeowner Association Law (CCHAL) voided everything that limits candidate nominations. Her organization then (i) mandated that candidates be an owner and (ii) gave associations their permission to adopt four specific qualifications. Since term limits prevent incumbent directors from being nominated, they will be unenforceable beginning January 1, 2020.

Nightmare Bill #2. What about 55+ communities where a 25-year old owns a unit via inheritance who cannot live in the unit due to age restrictions but wants to run for the board?

RESPONSE: Marjorie Murray's organization obviously did not think this through. Any requirements that board members in a 55+ community be at least 55 or live in the community are void on January 1, 2020. Senior communities can still enforce age restrictions on residents but not on board members.


Nightmare Bill #3. Everyone seems to have a different timeline for elections. Which one is right? -Mike K.

RESPONSE: I’m aware of four different timelines being circulated by law firms and management companies. The election requirements range from 105 days to 120 days. Marjorie Murray's bill is so badly drafted that no one can figure out how to comply with it. The fact that respected law firms arrive at different timelines does not bode well for associations struggling to comply with this deeply flawed legislation.


Nightmare Bill #4. I met with Sen. Wieckowski's office and they couldn't give me a straight answer regarding email privacy. I was told that the governor wants an additional bill addressing email early next year to make it so members would have to opt in, rather than opt out. -Rick S.

RESPONSE: Hopefully, Senator Wieckowski and Governor Newsom will do something to undo the chaos created by Marjorie Murray's bill. SB 323 needs to be repealed. At a bare minimum, it needs serious clean-up legislation.


Nightmare Bill #5. We adopted election rules that eliminate cumulative voting, quorum requirements, floor voting, and proxies, and allow for election by acclamation in uncontested elections. I see this mentioned for HOAs with 6,000 or more members. Does this mean we have to revert to secret ballots? If so, can we keep all the other options? -Netti J.

RESPONSE: In my opinion, your new provisions are valid. Voting by acclamation eliminates meaningless elections when the number of candidates is equal to or less than the number of open seats. Unfortunately, Marjorie Murray's organization blocked it a few years ago for HOAs but allowed it this year for associations with 6,000 or more members. Even so, I think voting by acclamation can be done if it is in your governing documents. However, there is a split in the legal community on the issue and boards should follow the advice of their legal counsel. See "Uncontested Elections."


Nightmare Bill #6. I'm still unclear about our management company's role in our elections. -R.A.

RESPONSE: Management companies can continue to be involved in elections, they just can't serve as inspectors of election.


Nightmare Bill #7. This legislation seems so ill conceived and irresponsible. Is is possible to create a court challenge on behalf of a large number of HOAs? -Jim P.

RESPONSE: The only litigation we are likely to see are more election challenges. The election timeline is absurd and associations will get tripped up by it. Senator Wieckowski is the one person who can clean up this mess. If enough people start knocking on his door, he might allow clean-up legislation.


Nightmare Bill #8. Regarding nominations from the floor, if a ballot is irrevocable once turned in, it rules out nominations from the floor. -Hank J.

RESPONSE: Nominations can still be made from floor and those who have not yet cast ballots can vote for floor nominees. However, as a practical matter, it makes floor nominations irrelevant.


Nightmare Bill #9. Does SB 323 apply to all HOA elections or just board member elections? -Hank J.

RESPONSE: It applies to all elections requiring secret ballots. As required by Civil Code §5100(a), the following matters must be voted by secret ballot:

  • special assessments over 5% and regular assessments over 20%,
  • election and removal of directors,
  • amendments to the governing documents, and
  • grant of exclusive use of common area property.


Nightmare Bill #10. The author of this abomination should be investigated. -H.J.

RESPONSE: It's sad that one person can cause this level of damage because she has the ear of one legislator.
 
NEW ELECTION
RULES

Election Rules. All associations must adopt new election rules. Any election conducted without new rules will be subject to legal challenge and may result in monetary penalties and an award of attorney fees.

CONTACT US if you would like us to prepare new election rules for your association.
Adrian J. Adams, Esq.
 
Boards can contact us for friendly, professional advice.

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

I join Adrian in inviting you to contact us for your association's legal needs.

Hon. Lawrence W. Stirling, Senior Partner ADAMS|STIRLING
Author of the Davis-Stirling Act


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When your association needs assistance, contact us.

HOA JOB MARKET

Contact us about amending your CC&Rs and Bylaws.

HARASSMENT
POLICY

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

FIRM News & Events

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