QUESTION: The owner of an upper unit installed a wood floor less than a year ago that disturbed the tenants below so much that they moved out because they could not stand the noise. The owner is refusing to change the flooring or put down carpeting because of allergy concerns. Can we amend our CC&Rs so that no wooden floors can be installed on the second floor? Can we make it retroactive?
ANSWER: You can amend your CC&Rs to prohibit hardwood flooring. Making it retroactive will not solve your problem. If someone has severe allergies, you must reasonably accommodate their request for a hardwood floor. All the person needs is a letter from a health care provider saying they need the flooring. Allowing it to be installed does not mean the person can destroy the quiet enjoyment of the resident below.
In a 2015 case, Ruben Munoz installed hardwood floors that transmitted intolerable noise to the owner below. Munoz refused to mitigate the noise claiming his wife suffered from severe allergies. The association sued Munoz. The court ordered him to install rugs over 80% of his floors. Munoz appealed and lost. (See Ryland Mews HOA v. Munoz.)
Your allergic owner can keep her hardwood floors provided she gets a letter from a healthcare provider that the floors are necessary and she eliminates the intolerable noise into the unit below. That may mean installing hypo-allergenic rugs throughout her unit. If that doesn't work, she may need to hire a contractor to remove her hardwood floors and reinstall them with proper soundproofing material.
RECOMMENDATION: You should have legal counsel write a letter to your allergic owner that failure to eliminate the noise will result in a lawsuit against her. If your board is reluctant to incur legal fees, directors should know that failure to take appropriate action could result in a lawsuit against the association by the owner below for failure to enforce the CC&Rs.
QUESTION: The new president installed a timer on the water heater recirculating pump so that hot water only circulates during the hours of 6-10 am & 5-10 pm. During the remaining hours, it is necessary to open the water faucet a long time to obtain hot water. The timed schedule does not support owners with alternate lifestyle/work careers. Is it legal?
ANSWER: Yes, it's legal. No one is being deprived of hot water--it's only delayed getting to the faucet. The board has the authority to regulate the common areas for the benefit of the membership. That includes regulating the recirculating pump to save electricity. The trade-off is wasted water. It should be noted that installing a timer is the board's decision, not the president's.
RECOMMENDATION: With enough feedback, members might persuade the board to remove the timer. If that does not work, members can elect new directors who agree with their wishes.
QUESTION: For years, I have been asking my association to install handicapped access to our pool and walkways. They said it would be ugly and refused. Should the board make an effort to have these things installed once asked?
ANSWER: With some exceptions, the federal law known as the Americans with Disabilities Act (ADA) does not apply to homeowner associations. Other laws, however, do apply.
Under the Federal Fair Housing Act of 1988, boards cannot prevent residents from using their own pool lifts to get into and out of association pools. In addition, if you are handicapped, the board must reasonably accommodate your request for handicap access to common areas. That means allowing you to install appropriate handicapped walkways, rails and the like. The downside is that the installation is at your expense. (Civ. Code §4760.)
RECOMMENDATION: Because many residents in associations are aging in place, I routinely advise boards to set aside funds in their reserves to make facilities friendly for the disabled. Even though associations are not subject to the ADA, members and their guests benefit when facilities are ADA compliant. The improvements do not need to be made all at once. They can be phased in over time as monies become available.
EXCLUDING A BOARD MEMBER
FROM A MEETING
QUESTION: I'm the treasurer of my association, The board held an emergency meeting without notifying me. The discussion included repairs to my unit caused by a flood. Is it legal that I was not notified about the emergency meeting?
ANSWER: You should have been notified of the meeting. Even so, the board may have had good reason to exclude you from any discussion involving your unit. As an "interested director" you cannot vote on something that benefits you personally. However, you can join the meeting, provide information about the flood, and then excuse yourself from the meeting. That can change if you threaten to sue the association over the flood. At that point, the directors could exclude you entirely so they could consult with legal counsel.
I am pleased to announce that our website dedicated to commercial and industrial common interest developments has been significantly upgraded. The new website is modeled after our Davis-Stirling.com website so users can easily move between the two.
Commercial and industrial associations are growing in number and popularity throughout California. Because the laws affecting commercial associations are different from residential associations, we indexed the laws on a separate research site dedicated solely to these business oriented developments. You can see the website at CommercialCID.com.
In addition to alerts from the California Legislative Action Committee (CLAC) regarding new legislation, you can receive concise, fact-checked monthly legislative reports from Skip Daum, a former Registered Legislative Advocate for CAI.
You can learn more about Skip’s website and newsletter at HOALaws.com.
Recommended Reading. I was the president of my association in La Jolla for 23 years. I think I may have seen it all, a few lawsuits included. Your newsletter is essential for board members to read and use when evaluating their bylaws, planning effective meetings and benefiting from intuitive reserve studies. Committees need to know their goals, activity, reporting and expected results. Though I am inactive now I appreciate those who put their time in to make their properties safe, enjoyable and affordable. I will look for more of your work here! -Daniel D.
Self-Defense. I am on the board of directors and I’ve always carried my firearm concealed whenever I’m working outside on the property for the last 5 years I’ve had the permit. If I am involved in a lethal force incident in the common areas (which is everywhere outside the units), does the HOA face any type of civil liability arising out of a deadly force incident? I’ve seen the declaration page for our policy and in the main portion and in any riders attached there is no mention even ambiguously of coverage (or not) for this type of contingency. -Aaron E.
RESPONSE: If you are on the board of directors and you are involved in a lethal force incident in the common areas, there is a 99.999% certainty the association will be named in any lawsuits that might be filed. Associations have deep pockets and make attractive targets. A plaintiff's lawyer will name everyone even remotely connected to the incident and let the court sort out liability.
Liability? Is it possible the association would have liability? It would depend on the circumstances involved in the shooting. In 2012, the fatal shooting of 17-year old Trayvon Martin by a homeowner association's neighborhood watch leader made the association a target of litigation. Trayvon's parents filed a claim with the insurer and sued the association for wrongful death, pain and suffering, and loss of earnings and expenses.
Insurance Denied Coverage. The association's insurance, through Traveler’s, sued Trayvon Martin’s mother and the association seeking clarification from the court that it had no responsibility to defend the association or to pay any judgment over the teenager’s death. Travelers had denied coverage under the policy’s “wrongful act” exclusion. A settlement was reached between Trayvon's parents and the association for an undisclosed amount, which was reported to be in excess of $1 million.
Insurance Exclusion? Whether your association's insurance covers an incident by a board member using a firearm is something you would have to discuss with your association's insurance agent. Maybe some of our readers with insurance expertise will have insight on this issue.
Buying a Golf Course. We have a special interest group that is actively trying to get our HOA to purchase a golf course that is being closed. This golf course is not part of the association. This group has loaded up the election for new board members with these special interest people. My question pertains to a potential conflict of interest of these future board members wishing to get the HOA to actively participate in this effort and the idea of using HOA funds to support and encourage this for-profit business. They have been holding secret meetings and even before the formal HOA board election have decided who will be president, treasurer etc. Once elected, what recourse do community members have that disagree with this path? Can board members be recalled if we find they plan to use HOA funds to promote this effort? -Sharon R.
RESPONSE: Our firm has worked with a number of associations on golf course issues. Some in situations similar to yours.
Property Values. There are many reasons why an association would have a strong interest in what might happen to an adjoining golf course. The potential impact on property values is foremost for active involvement. The fear is that the golf course will be abandoned and turn into an weed infested eyesore and then, at some later date, turned into high-density, low-income housing.
Conflict of Interest. There is no conflict of interest if candidates get on the board with the goal of acting in the best interests of the association. If, however, they have an ownership interest in the golf course, it creates a significant conflict of interest. Holding secret meeting before the election is legal since the candidates are not yet board members. Once on the board, the newly elected directors must comply with the Davis-Stirling Act and hold open meetings (except for executive session meetings).
Board Limitations. The board can use association funds to explore options related to the golf course, retain consultants, and incur legal expenses. In Finley v. Superior Court, a homeowners association used association funds to fight the conversion of the nearby El Toro Marine Base into a commercial airport. The association was sued and the court found in favor of the board's use funds in a political campaign to benefit the association.
The board cannot, by itself, commit the association to buying the golf course. Any purchase would require membership approval. Members with an opposing viewpoint can actively campaign against the purchase. The board should be diligent in getting legal counsel before taking any actions related to the golf course.
E-Bikes on Trails. Can an association that allows bicycles on paths and trails ban e-bikes? Level-2 e-bikes are slower than manually pedaled bicycles as they are limited to 20 mph. -Rod W.
RESPONSE: Yes, an association can ban e-bikes. Boards can regulate how trails are used. To that end, motorcycles are routinely banned from trails intended for bicycles. E-bikes are growing in popularity and drawing more attention. Should they be allowed on trails?
Level-2 E-Bikes. The average cyclist goes about 12 mph on regular bicycles. E-bikes (electric assisted bicycles) come in all shapes, sizes and speeds. Some can achieve speeds up to 28 miles per hour under motor assist. Level-2 e-bikes are not limited to 20 mph. Instead, it's the speed at which the electric motor stops assisting the rider. The e-bike can still go as fast as the person can pedal. Because of the motor assist, e-bikes help cyclists maintain a higher average speed. One study in Europe found that riders of e-bikes had an average speed much higher than regular cyclists.
Test Period. If an association decides e-bikes create unsafe conditions, it can restrict them from paths and trails. Perhaps your board can institute a test period with appropriate rules to see if e-bike riders create unsafe trail conditions. If there are no complaints, e-bikes could be allowed. If most riders are safe but one is a speed demon, the one could be suspended from using his e-bike on trails.
Does Age Matter? Do boards have to be balanced? If only younger people are on the board, older people’s needs are not addressed. -Lena R.
RESPONSE: No, there is no requirement that boards be balanced. In fact, some think being unbalanced is a qualification for serving on the board.
Commercial CID Crime Insurance. I am curious whether the fidelity bond requirements set forth in Civil Code §5806 apply to Commercial CIDs. I reviewed the website and did not find a clear answer. The definition of condominium association did not clearly indicate that it only applied to residential housing as opposed to commercial space. -Patrick C.
RESPONSE: Fidelity bond requirements do not apply to Commercial CIDs. Civil Code §4202 provides that the Davis-Stirling Act does not apply to commercial and industrial common interest developments, as defined in Civil Code §6531. Correspondingly, Civil Code §6582 provides that the entire Commercial and Industrial Common Interest Development Act applies only to commercial or industrial common interest developments.