IN THE COMMON AREA
QUESTION: One of the owners was upset over homeless people trespassing our common areas. He claimed he has the right to use his firearm even on common area grounds to protect himself. I said that the law of self-defense does not apply. If a firearm is used inside his dwelling, it might be considered as self-defense but not in the common area.
ANSWER: Self-defense is not limited to a person's home. In California, you have the right to defend yourself and others against imminent harm regardless of location. The right to self-defense does not change based on whether they are inside your home or outside. The benefit of being inside your home is the presumption that you acted in self-defense. (Penal Code § 198.5.)
Firearms in the Common Areas. Are there any limitations on firearms in the common areas? If the person is not licensed, California laws prohibiting the carrying a loaded firearm in any "public place" apply. (Penal Code §§ 25400, 25850, 26350, 26400.) The term “public place” is not defined, but most California courts have interpreted the restriction to apply if the area is reasonably accessible to the public without a barrier. (People v. Yarbrough (2008) 169 Cal.App.4th 303 (holding a private driveway may be a “public place” as applied to California’s loaded carry restrictions).
Common Areas. Are common areas a public place? If so, then California’s restrictions against the carrying a loaded firearm in the common areas apply. One court has already determined that private association meetings are "public" forums for the limited purpose of free speech by the membership. (Damon v. Ocean Hills.) It is likely courts would also deem common areas a "public place" for the association's membership. Therefore, anyone carrying a loaded firearm in the common areas would need to be licensed. Individuals with a license to carry a loaded firearm are generally exempt from California’s restrictions. (Penal Code §§ 25655, 26010.)
Self-Defense in Common Areas. Even though a person may lawfully defend himself with a firearm in the common areas, if he is not licensed to carry it in a public place, he could face prosecution for the unlawful possession of and or carrying of a firearm in connection with any incident involving it. In addition, if he shoots another person, he will need to prove:
1. He reasonably believed he or someone else was in imminent danger of being harmed;
Thank you to attorney Matthew Cubeiro with the law firm of Michel & Associates for his assistance with this question. His firm has a number of practice areas, including firearms law. For more information on gun laws, see www.calgunlawsbook.com
2. He reasonably believed the use of force was necessary to defend against that danger; and
3. He only used the amount of force reasonably necessary to defend against that danger.
IS A FENCE
According to a recent case from the Michigan Court of Appeals, the Fair Housing Act does not give owners of emotional support and service animals an unlimited right to accommodation.
No Fences Allowed. The Fox Bay Civic Association's CC&Rs prohibited fences. A disabled homeowner (Creswell) constructed a fence around her backyard without the Association's approval. She wanted to keep her emotional support and service dogs in her yard.
Invisible Fence. The Association determined that Creswell had alternatives that did not violate the CC&Rs, such as installing a dog run or invisible fence (which the Association offered to install). Creswell refused to take down her fence and the Association sued. The trial court agreed with the Association and Creswell appealed.
Not Mere Suggestions. The Michigan Court of Appeals also agreed with the Association and ruled that Creswell had reasonable alternatives without violating the CC&Rs. The court stated the CC&Rs were "deed restrictions" not "deed suggestions" and disabled owners were entitled to a reasonable accommodation not absolute accommodation. To read the case, see Fox Bay Civic Assn v Creswell.
QUESTION: I am on the Architectural Review Committee (ARC). I have questions about the Committee.
ANSWER: Since you have seven questions, I will number and answer each of them.
1. Who makes up the rules for this committee and who adopts them? And how can they be modified?
• Architectural guidelines can be drafted by the ARC but must be adopted by the board of directors in an open meeting after distribution to the membership for review and comment. (See "Adopting & Amending Rules.") Guidelines on how the ARC operates depends on the association and its governing documents. Some leave it entirely to the ARC. In others, the board establishes formal written guidelines so there is consistency from year to year on how the ARC operates.
2. The chair does not allow homeowners to speak to the committee in opposition to a proposed project but the applicants can speak all they want in favor of their project. Is this fair and legal?
• It's not illegal. Fairness is another matter. My preference is to allow members to express their concerns. By no means do neighbors have veto authority over architectural submissions. Their input, however, might highlight something the ARC should take into consideration.
3. If a project is disapproved by the ARC, the applicants have the right to appeal that decision to the board. But if the project is approved, no one, not even an adjoining neighbor, may appeal to the board! Is this fair and legal?
• By statute, disapproval by an architectural committee is subject to appeal to the board (unless the board is the ARC, in which case there is no one to appeal to). Approvals are not addressed by the Davis-Stirling Act. Even so, a neighbor who might be unhappy with an ARC approval can "appeal" the decision by (i) writing a letter to the board, (ii) raising the issue in Open Forum at the next open board meeting, and (iii) demanding internal dispute resolution.
4. Should not this committee produce minutes and post them somewhere? All the chair does is make an oral report of the ARC’s decisions at board meetings.
• Yes, architectural committees should keep a written record of their decisions. (See "Architectural Committee Minutes.")
5. There is a curious rule that if a homeowner wants to modify the appearance of less than 25% of his/her front yard, side yard or backyard, he/she can do so without ARC approval. Is this the law? It doesn’t make sense to me. They could put a statue of the Green Giant peeing in the garden and that would be OK??
• No, the 25% landscaping rule is not a law, it is something your board adopted or may be in your CC&Rs. Statues of green giants peeing in the garden would normally be covered by your ARC guidelines.
6. Is a homeowner in a gated community not also subject to the county planning department’s rules? Such as needing permission from a neighbor before installing a statue or whatever within a few feet of the property’s boundary?
• The Building Department addresses construction and setback issues, not garden statues. The placement of a statue is something the association should address.
7. Is there a state agency that oversees any of these issues?
• No, thank goodness. The state's involvement is rarely helpful. Oversight programs in other states has proven to be costly for associations and disruptive.
I am pleased to announce that attorney Farah Nourmand joined our firm. Prior to joining us, Farah oversaw a boutique law firm specializing in real estate, employment law, business and general civil litigation.
Corporate & Litigation Counsel. Farah's litigation practice included mediations, settlements, law and motion, eviction proceedings, and trials. On the transactional side, Farah oversaw day to day legal affairs as in-house counsel, negotiated and drafted commercial leases, determined property rights, conducted legal seminars, and performed due diligence related to purchases and sales.
Employment Law. Farah's employment law practice included preparing company policies, employee handbooks, and other employment-related documents. In addition, she advised clients on wage and hour claims and employee risk management.
Homeowner Associations. Farah also has practical experience with homeowner associations, having served as a president of her own condominium association for many years. Her experience is an asset when counseling boards of directors.
Education. Farah earned a Bachelor of Arts with a Major in English from the University of Southern California in Los Angeles. This was followed by a Juris Doctorate from the Whittier Law School in Costa Mesa, California. In addition to English, Farah is fluent in Persian and Spanish.
We are delighted to have such an experienced attorney join our team. If your association needs legal services, contact us for a proposal.
FOR LOS ANGELES OFFICE
We are looking for experienced attorneys for our Los Angeles office.
Candidates should have at least five years of 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 had more responses about Battling Betty than I could print. Following is a sampling:
Ready to Rumble #1. There is possibly more to this incident than is written. The old guy board member most likely said or did something to provoke battling Betty to say "step outside and I'll beat the crap out of you" Her first amendment right says that she can. The old codger (chicken that he was) didn't step outside to get the crap beat out of him, so there was no harm done! -PK
RESPONSE: Violence and threats of violence are never appropriate. The male board member did the right thing by not stepping outside. As noted in the next feedback response, there would have been no insurance to cover injuries and subsequent litigation if the two directors had stepped outside.
Ready to Rumble #2. Board members who willingly engage in physical altercations with others will not be covered by the HOA’s insurance policy. Insurance does not cover intentional acts, and it would be hard to argue that stepping into the ring to solve problems is unintentional. On the other hand, if an irate homeowner attacks a board member during a meeting, the association’s worker’s compensation insurance will likely cover injuries sustained by the board member. This is one of the reasons why it is important for associations to carry the insurance, even if they have no employees. Worker’s comp for non-profit associations with no employees is generally inexpensive (between $500-$700 per year), covers volunteer directors, and is an important part of an association’s insurance program. -Erik Strom, Strom-Richards Insurance Agency, Inc.
RESPONSE: I agree. I encourage all boards to purchase workers comp insurance even if they don't have employees.
Ready to Rumble #3. The inability of people to act like proper ladies and gentlemen isn’t confined to HOAs. Apparently, it’s becoming a widespread problem. Semper Fi -Wayne W.
Ready to Rumble #4. Regarding Battling Betty, am I the only woman who caught a whiff of male chauvinism in that scenario? Having been a provider of health care to women & having served recently on an HOA board, I can attest that misogyny is alive & well in the state of California. I certainly concur that threats of physical violence have no place at board meetings, but if the threat of violence was truly the issue in the questioner's mind, then what difference would it have made if the person leveling the threat was male or female? I can't help but suspect that "Betty" blew her top after having endured a tidal wave of abusive, belittling & offensive remarks from the "Old Man" & probably other male homeowners. Now might be a good time for you to address manifestations of gender bias during board meetings. Women own homes too, presumably with the same privileges & responsibilities as males. -Charlotte K.
RESPONSE: It's clear Betty blew her top. Whether male or female, such threats are unacceptable. If the male director engaged in abusive, belittling and offensive remarks, Betty and fellow directors should have immediately admonished and/or censured the director.
Ready to Rumble #5. I was on a dysfunctional board several years ago. On one night just prior to a board meeting, two directors were trying to pick a physical fight with a homeowner, which a lot of us witnessed. I decided to draw-up a censure for the BOD to vote-on at the next executive session which pertained to the two directors: the President and the Treasurer. They tried to prevent me from presenting it, but the manager insisted that they should read and vote on it. So they did, and the vote was 4-0 to reject the censure. (I abstained.) So censuring didn't work, but politicking in the community later did. -Kevin H.
RESPONSE: It's good that you tried the censure. It at least made clear where lines were drawn.
Calling Attorneys. Regarding your article on calling attorneys, does the president have to get permission from the board to call the attorney? Or, does the president have discretion? -M.M.
RESPONSE: Normally, the president has discretion. Even so, small associations with very limited budgets generally do not call legal counsel unless the board approves it.
Cat Meow Fines. Our new board adopted 12 pages of unreasonable rules, such as, if your cat meows for more than 5 minutes you will be fined. After 3 meowing violations, your cat will be removed. Our manager told us to suck it up and the board has the authority to make whatever rules they'd like without input from community members. I believe the community should be able to give feed back as to what they feel is best, not 5 individuals making it up. -Tatum N.
RESPONSE: I see from your email you are writing from S. Carolina. In California, we keep our cats so well fed they spend all their time purring or sleeping. If a cat meows, we drop everything and give it more food. I don't know about S. Carolina laws when it comes to adopting rules. In California, boards must circulate proposed rules and take into account membership feedback before adopting them. If the membership finds the rules to be excessive, they have up to 30 days from notice of the rule's adoption to call a meeting to reverse the rule. (See "Petition to Reverse Rule.")